Immunologist Sir Macfarlane Burnet, Nobel prize winner and first winner of the ‘Australian of the Year’ award, urges the Australian government to develop biological and chemical weapons to use against Indonesia and other countries of Southeast Asia. In 1998, Canberra historian Philip Dorling will obtaim a declassified 1947 report from the Australian National Archives which reveals that in his advisory role on biological warfare, Burnet had recommended development of biological and chemical weapons to target food crops and spread infectious diseases in the “overpopulated” tropical countries of Southeast Asia. “Specifically to the Australian situation, the most effective counter-offensive to threatened invasion by overpopulated Asiatic countries would be directed towards the destruction by biological or chemical means of tropical food crops and the dissemination of infectious disease capable of spreading in tropical but not under Australian conditions,” Burnet writes. [Age (Melbourne), 3/10/2002]

Over the span of two decades, Monsanto accumulates approximately 650 plant-related biotech patents, including the patent on the 35S promoter, a genetic mechanism used extensively in the biotech industry. All biotech companies using the promoter must pay Monsanto a technology use fee. By 2004, the company has a 29.82 percent share of all research and development in the biotech industry. [Center for Food Safety, 2005, pp. 13 ]

Revisions to the International Convention for the Protection of New Varieties of Plants strengthen the intellectual property rights of seed developers. The convention was created in 1961 and is one of several international conventions and treaties that operate under the umbrella of the World Intellectual Property Organization (WIPO). The convention’s governing body is the International Union for the Protection of New Varieties of Plants (UPOV). The newly revised UPOV agreement extends the term of plant breeders’ intellectual property protections for new varieties from 15 years to 20 years. It also prohibits farmers from saving seeds, though there is an optional clause that allows member countries to exempt farmers from this restriction under certain conditions. For example, the clause says the restrictions can be waived if member countries implement other mechanisms that provide equivalent protections for the “legitimate interests of the breeder.”
[International Union for the Protection of New Varieties of Plants, 3/19/1991; Dhar, Pandey, and Chaturvedi, 6/23/1995] The revisions will enter into force one month after five states have ratified, accepted, approved or acceded to UPOV ‘91.

Vice President Dan Quayle, chairman of the President’s Council on Competitiveness, and Louis Sullivan, secretary of health and human services, announce the FDA’s new policy on the regulation of genetically engineered foods. In the policy statement that is published three days later, the FDA will say it has determined that genetically modified (GM) foods are “substantially equivalent” to conventionally grown foods and therefore will not be subject to any special regulations. The agency justifies its position saying that assessments concerning the safety of food products should be based on the characteristics of the food product and not on the methods used to develop that product. [US Food and Drug Administration, 5/29/1992 ] Specifically addressing the issue of labeling for GM foods, the May 29 statement will read: “The agency is not aware of any information showing that foods derived by these new methods differ from other foods in any meaningful or uniform way, or that, as a class, foods developed by the new techniques present any different or greater safety concern than foods developed by traditional plant breeding. For this reason, the agency does not believe that the method of development of a new plant variety… would… usually be required to be disclosed in labeling for the food.” Labeling would only be required in special cases, the FDA says. For example, if a genetically engineered tomato contains a peanut protein that is a proven allergen, a label will be needed. [US Food and Drug Administration, 5/29/1992, pp. 22991 ] In their statement to the press, Sullivan says that biotechnology promises to develop new food products “that are tastier, more varied, more wholesome, and that can be produced more efficiently.” Quayle’s council played a key role in expediting the development of the policy. [Food and Drug Administration, 5/26/1992] Quayle explains that the policy will ensure the competitiveness of US firms. “The reforms we announce today will speed up and simplify the process of bringing better agricultural products, developed through biotech, to consumers, food processors, and farmers,” he says. “We will ensure that biotech products will receive the same oversight as other products, instead of being hampered by unnecessary regulation.” [New York Times, 1/25/2001]

Upon learning that the Food and Drug Administration (FDA) has decided not to require special regulation for genetically engineered foods (see May 26, 1992), FDA scientist Dr. Louis J. Pribyl blasts the decision in a memo to his colleagues. “This is the industry’s pet idea, namely that there are no unintended effects that will raise the FDA’s level of concern,” he writes. “But time and time again, there is no data to back up their contention.” Pribyl, one of 17 government scientists who have been working on a policy for genetically engineered food, knows from his own research and studies that the introduction of new genes into a plant’s cell can produce toxins. [New York Times, 1/25/2001]

Percy Schmeiser, a farmer in Bruno, Saskatchewan, grows his crop of Argentine canola from seed saved the previous year. His crop is generally free of weeds and diseases common to canola and he claims higher-than-average yields. According to Schmeiser, he is able to grow his crops back-to-back in the same fields—a practice which typically results in diseased crops—because of his superior farming practices. The advantage of growing crops back-to-back in the same fields, according to Schmeiser, is that plants are able to utilize the benefits of the previous year’s fertilizer which allows the farmer to use less. Schmeiser also prefers to time the tilling of his fields in such a way that reduces the possibility of introducing diseased plant matter into the soil. Schmeiser uses Roundup, a broad-spectrum herbicide that is sprayed on the foliage of weeds, to clear his fields of vegetation for fallowing and before spring planting. He also uses the herbicide to kill of vegetation growing in roadside ditches and around telephone poles. To control any weeds growing among his crops he prefers a product that can be incorporated into the soil, or one that kills weeds as they germinate. He avoids using post-emergent herbicides that treat weeds after they have grown, since this weed control strategy allows the weeds to grow and thus consume much of the fertilizer and soil moisture that otherwise would be available for the crop. [Star Phoenix (Saskatoon), 6/14/2000; Federal Court of Canada, 6/22/2000, pp. 2-3 ; Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 14-15 ]

A number of agricultural biotech firms secure patents on genetic use restriction technologies (GURTs). GURT, more commonly known as “terminator” technology, involves genetically engineering seeds to grow into sterile plants. The motivation behind this technology is to provide a means for seed companies to protect their intellectual property rights. By making their seeds genetically sterile, seed companies can prevent farmers from saving and replanting proprietary seeds, thus forcing farmers to purchase new seeds every year. Critics say that biotech companies intend to use the technology to force their seeds on Third World farmers, most of whom engage in subsistence-level farming and plant only common seed. The seed industry sees these farmers as a huge untapped market. Seed savers number an estimated 1.4 billion farmers worldwide—100 million in Latin America, 300 million in Africa, and 1 billion in Asia—and are responsible for growing between 15 and 20 percent of the world’s food supply. [USPTO Patent Database, 3/3/1998; Rural Advancement Foundation International, 3/30/1998; Ecologist, 9/1998] In addition to GURT, companies are seeking to develop a similar technology, called T-GURT or genetic trait control. This technology would make plant growth or the expression of certain genes contingent on whether or not the seed or plant is exposed to certain chemicals. For example, AstraZeneca is developing a technology to produce crops that would fail to grow properly if they are not regularly exposed to the company’s chemicals. The Canadian-based Rural Advancement Foundation International (RAFI) suggests that T-GURT could serve as a platform upon which certain proprietary traits could be placed. In order to turn positive traits (e.g., herbicide-resistance) on, or negative traits (e.g., sterility) off, the farmer would need to either apply proprietary chemicals to the crops as they grow or pay to have the seeds soaked in a catalyst solution prior to planting. Critics note that this technology, like terminator technology, would require that farmers pay every year to have functioning seeds. Farmers would, in effect, be leasing the seed. Companies developing GURT and T-GURT seeds include Novartis, AstraZeneca, Monsanto, Pioneer Hi-Bred, Rhone Poulenc, and DuPont. [Rural Advancement Foundation International, 1/27/1999; Rural Advancement Foundation International, 1/30/1999; Rural Advancement Foundation International, 1/30/1999]Critics Say: - Terminator seeds would either turn poor farmers into “bioserfs,” by requiring them to pay for their seed every year, or drive these farmers out of farming all together. Proponents counter that farmers would not be forced to buy the seed. [Rural Advancement Foundation International, 3/30/1998] If biotech seed companies were to penetrate the markets of non-industrialized countries, their seeds would replace thousands of locally grown and adapted varieties resulting in a significant loss of the world’s agricultural biodiversity. [Rural Advancement Foundation International, 3/30/1998] The use of terminator technology would allow the seed industry to expand into new sectors of the seed market, like those for self-pollinating crops such as wheat, rice, cotton, soybeans, oats and sorghum, according to the Canadian-based Rural Advancement Foundation International (RAFI). “Historically there has been little commercial interest in non-hybridized seeds such as wheat and rice because there was no way for seed companies to control reproduction. With the patent announcement, the world’s two most critical food crops—rice and wheat—staple crops for three-quarters of the world’s poor, potentially enter the realm of private monopoly.” The organization notes that according to FAO, wheat, the world’s most widely cultivated crop, was grown on 219 million hectares in 1995. Rice, which was cultivated on 149 million hectares that year, produced the most crop by weight at 542 million tons. [Rural Advancement Foundation International, 3/30/1998] Critics warn that terminator technology would threaten the farmers’ expertise in seed selection and traditional plant breeding. [India, 12/2/1998] Some scientists have warned that introducing terminator genes into the germplasm could result in the development of a virus that could disable all non-terminator seeds. “This is perfectly possible,” according to Dr. Owain Williams, of the Gaia Foundation. “Already bacteria have been developed for fixing nitrogen into corn roots, so why not a killer bacteria?”
[Independent, 3/22/1998] Terminator technology is also likened to piracy. Anuradha Mittal and Peter Rosset of Food First/The Institute for Food and Development Policy, write: “Patenting genes the same way you patent software robs Third World farmers. While they and their ancestors developed almost all important food crops, transnational corporations can now blithely patent those crops and make mega profits without in any way compensating traditional farm communities for the original research. Genetic resources taken freely from southern countries will be returned to them later as pricey patented commodities. ‘Terminator’ technology is a way of locking this ‘bio-piracy’ into the very genes themselves.”
[San Francisco Chronicle, 3/1/1999]Proponents Say: - Supporters of the technology say that farmers will not be required to buy the seed and therefore will not purchase it unless they perceive some benefit from using it. Critics say that this scenario is not realistic. In a market dominated by an ever diminishing number of seed companies, selection will be limited. RAFI notes: “Current trends in seed industry consolidation, coupled with rapid declines in public sector breeding, mean that farmers are increasingly vulnerable and have far fewer options in the marketplace.”
[Rural Advancement Foundation International, 3/30/1998] Some proponents argue that terminator seeds would be no different than F1 hybrids, which produce lower quality seeds than their parents. [London Times, 11/4/1998] Advocates say that terminator technology will allow the industry to safely release genetically modified plants into the environment, without the risk of contaminating related crops or wild plants. [New Scientist, 2/26/2005] Critics say that alleged benefit is outweighed by the danger terminator seeds pose to food safety, farmers’ rights, and agricultural biodiversity. [Rural Advancement Foundation International, 3/30/1998]

Kirk Azevedo lands a job with the Monsanto Company. Young and idealistic, he is later described by author Jeffrey Smith as the “perfect candidate to project the company’s ‘Save the world through genetic engineering’ image.” He is fascinated with the company’s CEO, Robert Shapiro, who talks about genetically modified organisms being used to “reduce the in-process waste from manufacturing, turn our fields into factories and produce anything from lifesaving drugs to insect-resistant plants,” Azevedo later recalls. But three months after taking the job, after a meeting at the company’s headquarters in St. Louis, a vice president tells him, “What [CEO] Robert Shapiro says is one thing. But what we do is something else. We are here to make money. He is the front man who tells a story. We don’t even understand what he is saying.” [Spilling the Beans, 6/2006]

Monsanto’s “Technology Use Agreement” requires farmers to pay a $12 ($15 CAD) technology fee for every acre they plant with Monsanto’s patented seed. Farmers pay the fee to the store where they purchase the seed. Under the terms of the agreement, farmers must deliver all of their crop to an elevator or crushing plant—they are prohibited from saving and replanting any harvested seed. They therefore must purchase new seed every year. They are also prohibited from making the seed available to other farmers, a practice known as “brown-bagging.” [Washington Post, 2/3/1999; Canadian Business, 10/8/1999]
“Monsanto effectively gains a license to control the seed even after the farmer has bought, planted, and harvested it,” notes a 2005 report by the Center for Food Safety. [Center for Food Safety, 2005, pp. 13 ] For thousands of years farmers have been planting the seeds they collected from the previous year’s harvest. Monsanto’s restrictions therefore cause great concern among organizations that deal with global food security since three-quarters of the world’s food producers are subsistence farmers who plant saved seeds. [Washington Post, 2/3/1999] The contract also gives Monsanto the right to come onto a farmer’s land to take plant samples for three years after a farmer has stopped using the company’s seed. Another stipulation in the contract specifies that farmers can only use Monsanto’s Roundup herbicide. This clause virtually guarantees Monsanto a dominant share in the non-selective herbicide market for its Roundup herbicide—which has no patent protection in Canada and whose patent in the US expires in 2000. Though many farmers are reportedly happy with the product, few like the provisions in this contract. [Washington Post, 2/3/1999; Canadian Business, 10/8/1999]
“This is part of the agricultural revolution, and any revolution is painful. But the technology is good technology,” says Karen Marshall, a Monsanto spokeswoman. The company says the no-replant policy is necessary in order to recoup the millions of dollars it has spent on research and development. The company claims its genetically modified seeds are increasing farmers’ yields and making it possible for them to use more environmentally-friendly pesticides. [Washington Post, 2/3/1999]

Monsanto spends $8 billion acquiring, or establishing relationships with, several US and foreign seed companies. [Canadian Business, 10/8/1999; Center for Food Safety, 2005, pp. 9-10 ] The list of companies includes: Calgene, Inc.; Asgrow Agronomics; Asgrow and Stine Seed; Agracetus; Holden’s Foundation Seeds, Inc.; Monsoy (a Brazilian soybean company); Cargill’s international seed divisions (with operations in Asia, Africa, Europe, and Central and South America); Plant Breeding International; and DeKalb Genetics (the world’s second largest seed company). Pioneer Hi-Bred is the only major US seed company that Monsanto does not buy out. However, Pioneer has purchased rights from Monsanto to use technology relating to Roundup Ready soybeans and Bt corn. A 2005 report by the Center for Food Safety will say that one of the factors contributing to Monsanto’s cornering of the GM market (see 1998 and later) is its control of these seed companies. “[T]hese companies (often owned or indirectly controlled by Monsanto) had to agree that 90 percent of the sales of herbicide-tolerant soybeans would contain Monsanto’s patented technology. This requirement was later dropped to 70 percent after Monsanto came under scrutiny from government regulators. Through this sort of ownership and control of seed companies, Monsanto has been able to ensure that competition [will] remain small and that its patented genetically engineered crop varieties [will] be the ones most readily available to the American farmer.”
[Center for Food Safety, 2005, pp. 9-10 ]

To enforce its “Technology Use Agreement” (see 1996), Monsanto sends detectives into farming communities to ensure that all fields planted with its patented seeds have been paid for. Farmers call them the “Monsanto police.” In the US, Monsanto has a contract with Pinkerton Security and Consulting. In Canada, the company uses Robinson Investigation Canada Ltd., which employs a team of former Royal Canadian Mounted Police. Monsanto also encourages farmers to use a toll-free “tip line” to blow the whistle on noncompliant neighbors. According to one farmer, Monsanto promises to reward snitchers with a leather jacket, an allegation that Monsanto denies. [Washington Post, 2/3/1999; Canadian Business, 10/8/1999] Another tactic employed by the company is to place radio ads broadcasting the names of growers caught illegally planting Monsanto’s seeds. [Washington Post, 2/3/1999] Monsanto threatens legal action against any farmer who it believes has violated the agreement. Suing one’s own customers “is a little touchy,” Karen Marshall, a Monsanto spokeswoman, concedes, adding that after spending so much money on research, Monsanto doesn’t want “to give the technology away.”
[Washington Post, 2/3/1999] Craig Evans, the head of Monsanto’s Canadian biotechnology operation in Winnipeg, says: “At the end of the day if we don’t enforce our patent rights, the potential for new technology to come forward to maintain the competitiveness of the industry could disappear, because if you can’t get the return, then you’re going to take your technology somewhere else. We’re just trying to be fair. All I’m trying to do is fulfill the promise of the growers who said, ‘Monsanto, I’m willing to pay you for your technology as long as everyone’s paying.’”
[Washington Post, 2/3/1999] Critics say Monsanto’s actions are tearing away at the social fabric that has traditionally held farming communities together. [Washington Post, 2/3/1999; Star Phoenix (Saskatoon), 4/14/2005]
“Farmers here are calling it a reign of terror,” according to canola farmer Percy Schmeiser. “Everyone’s looking at each other and asking, ‘Did my neighbor say something?’”
[Washington Post, 2/3/1999] “Our rural communities are being turned into corporate police states and farmers are being turned into criminals,” Hope Shand, research director of Rural Advancement Foundation International, explains to the Washington Post in 1999. [Washington Post, 2/3/1999]

According to the 2000 court testimony of Percy Schmeiser’s field hand, Carlyle Moritz, swaths (swaths are the debris left over after a field has been mowed) from a neighbor’s field planted with Monsanto’s Roundup Ready Canola are blown onto one of Schmeiser’s fields. The swaths are subsequently picked up by a combine and deposited into the grain bins on that field. It is later suggested that some of the Roundup Ready Canola later found in Schmeiser’s crop may have grown from seeds carried onto his property in these swaths. [Federal Court of Canada, 6/22/2000, pp. 6 ]

Between 1997 and 2002, Monsanto makes at least $700,000 in illicit payments to at least 140 current and former Indonesian government officials and their family members in an effort to obtain legislation and ministerial decrees supporting the cultivation of genetically modified crops. The payments are made through Monsanto’s affiliates and representatives who have offices in Jakarta. The largest payment is for $373,990, which is used to design and build a house for a senior Ministry of Agriculture official. Monsanto even purchases the land for the house. “Other examples of improper payments include, among others, payments to a senior official of Budget Allocation at the National Planning and Development Board, totaling $86,690, and payments to other Ministry of Agriculture officials, totaling $8,100,” according to the US Securities and Exchange Commission. $29,500 is given to officials at the agriculture ministry in South Sulawesi, where the first shipment of Monsanto cotton is sent in 2001 (see March 15, 2001). [Reuters, 1/7/2001; Jakarta Post, 1/10/2001; US Securities and Exchange Commission, 1/6/2005; BBC, 1/7/2005] The payments are financed in part “through unauthorized, improperly documented and inflated sales of Monsanto’s pesticide products in Indonesia,” Monsanto later admits. [Monsanto, 1/6/2005]

According to Kirk Azevedo, Monsanto’s facilitator for genetically modified cotton sales in California and Arizona, he learns from a Monsanto scientist that the company’s GM Roundup Ready cotton not only contains the intended protein produced by the Roundup Ready gene, but also contains additional proteins that are not naturally produced in the plant. These unknown proteins were created during the gene insertion process, the scientist reportedly explained to Azevedo, when the modified genes were inserted into the plant’s DNA using a “gene gun.” Azevedo, who has been studying mad cow disease (bovine spongiform encephalopathy), becomes concerned that these abnormal proteins “might possibly lead to mad cow or some other prion-type diseases.” When he shares this concern with the scientist, he discovers that the scientist has no idea what he is talking about. “He had not even heard of prions. And this was at a time when Europe had a great concern about mad cow disease and it was just before the Nobel prize was won by Stanley Prusiner for his discovery of prion proteins,” Azevedo later recalls. [Spilling the Beans, 6/2006] Azevedo will become even more concerned when he learns that Monsanto scientists are feeding experimental GM cotton plants to cattle (see Summer 1997).

Kirk Azevedo, Monsanto’s facilitator for genetically modified cotton sales in California and Arizona, will later say that around this time he discovered that Monsanto is feeding GM cotton plants from test fields to cattle. “I had great issue with this. I had worked for Abbot Laboratories doing research, doing test plots using Bt sprays from bacteria. We would never take a test plot and put [it] into the food supply, even with somewhat benign chemistries. We would always destroy the test plot material and not let anything into the food supply.” When he explains to the Ph.D. in charge of the test plot that feeding experimental plants containing unknown proteins (see 1996) to cows is a potential health risk to humans, the scientist refuses to end the practice. “Well that’s what we’re doing everywhere else and that’s what we’re doing here,” Azevedo recalls the scientist saying. Azevedo then raises his concerns with other employees in Monsanto. “I approached pretty much everyone on my team in Monsanto” but no one seemed interested, and in fact, people started to ignore him. Next, he contacts California agriculture commissioners whose responsibility it is to ensure that the management and design of test plots do not pose any risks to public health. But, “once again, even at the Ag commissioner level, they were dealing with a new technology that was beyond their comprehension,” Azevedo later explains. “They did not really grasp what untoward effects might be created by the genetic engineering process itself.” He also tries unsuccessfully to speak with people at the University of California. Frustrated with the company and the government’s apparent lack of concern, he quits his job at Monsanto in early January 1998. [Spilling the Beans, 6/2006]

Percy Schmeiser has Roundup sprayed in the ditches and around the telephone poles adjacent to the road that runs along four of his nine canola fields. After the spraying, he notices that roughly 60 percent of the canola plants survived the application. Curious about the possibility that his canola may have developed a resistance to glyphosate, the active ingredient in Roundup, he sprays a trial strip about 100 feet wide in one of the fields that is next to the road. He later says in court that the total area represented a “good three acres.” As a result of the spraying, roughly 40 percent of the canola plants die. The surviving 60 percent are scattered in clumps and are mostly concentrated near the road. [Alberta Report, 9/6/1999; Leader Post (Regina, Saskatchewan), 6/13/2000; Federal Court of Canada, 6/22/2000, pp. 6 ]

Wayne Derbyshire, an investigator with Robinson Investigation Canada Ltd, goes to Percy Schmeiser’s farm to obtain plant samples on behalf of Monsanto. Monsanto has hired Robinson Investigation to obtain the samples because the company believes that Schmeiser planted its patent-protected seeds and that he illegally purchased them from a Monsanto-licensed farmer. Monsanto’s “Technology Use Agreement”
(see 1996) prohibits licensed farmers from making patented seeds available to other growers. (Selling seeds under the table in this manner is referred to as “brown-bagging.”) [Washington Post, 5/2/1999; Federal Court of Canada, 6/22/2000, pp. 15-17 ; Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 19 ] One set of samples is taken from a field that later court testimony reveals may not have been Schmeiser’s. The second set of samples is taken from plants owned by Percy Schmeiser that are growing in the ditches and public right-of-way where Schmeiser earlier discovered the presence of Roundup-resistant canola (see Summer 1997). Derbyshire sends the samples to his boss, Mike Robinson, on August 27. [Federal Court of Canada, 6/22/2000, pp. 15-17 ] When Schmeiser later learns of this sampling in 1998, he will accuse Robinson Investigation of trespassing (see March 1998). Farmers are permitted to grow and harvest crops in public right-of-ways, and on this basis, Schmeiser’s lawyer will later argue in court that the crops taken by Derbyshire were in fact property of Schmeiser. [Federal Court of Canada, 6/22/2000, pp. 15-17 ] Philip Angell, Monsanto’s director of corporate communications, disputes Schmeiser’s allegation, telling the Washington Post in 1999 that it is not completely clear whether Derbyshire actually crossed Schmeiser’s property line. Angell also asserts that trespassing is neither a criminal nor a civil offense in Saskatchewan. [Washington Post, 5/2/1999]

On September 2, Mike Robinson sends the canola plant samples taken from Percy Schmeiser’s farm (see August 18, 1997) to Aaron Mitchell, the Monsanto employee who is in charge of the company’s investigation of Schmeiser. Each sample is said to contain between 10 and 40 pods. Upon receipt of the pods, Mitchell removes the seeds and places them in coin envelopes. He then sends them to Merle Waterfield of the Crop Science Department of the University of Saskatchewan for a grow-out test. Only four seeds from each sample are planted. All except one of the plants that germinate from these seeds survive an application of Roundup. The remaining samples are then returned to Mitchell. [Federal Court of Canada, 6/22/2000, pp. 17 ; Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 20 ]

Monsanto employee Rob Chomyn asks Gary Pappenpoot, the manager at Humboldt Flour Mills, if he would be willing to provide Monsanto with samples of seeds from farmers the company is investigating. Pappenpoot agrees. Humboldt Flour Mills inoculates seeds against diseases and insects. It does not clean seeds (i.e., remove the chaff). [Federal Court of Canada, 6/22/2000, pp. 18 ]

As part of an effort to increase the acceptance of genetically modified crops in Indonesia, Monsanto contracts PT Harvest International, a Jakarta-based investment consulting firm. The firm helps Monsanto secure the various government approvals and licenses necessary to sell its products there and also lobbies and allegedly bribes government officials (see Late June 2002)
(see September 2000). Much of the lobbying is aimed at opening the country up to Monsanto’s Bollgard Bt cotton, which Monsanto says is environmentally-friendly and less reliant on pesticide. The company also claims its genetically modified seeds will produce as much as 3 tons of cotton per hectare. Much of Harvest’s work is coordinated and overseen by a US-based senior Monsanto manager and two Monsanto-controlled entities based in Jakarta: PT Monagro Kimia and PT Branita Sandhini. [Jakarta Post, 1/10/2001; Institute for Science in Society, 12/5/2004; US Securities and Exchange Commission, 1/6/2005]

Monsanto has become the world’s largest supplier of genetically modified seeds and the second largest seller of all seed types. Only Pioneer Hi-Bred, soon to be purchased by Dupont (see March 14, 1999), sells more seeds than Monsanto. Within the US, Monsanto directly or indirectly controls nearly half the corn germplasm market and most of the soybean market. Its dominant position in the market has been attributed to several factors: its two-year buying spree of other seed companies (see 1996-1998), its control of a large percentage of the biotech industry’s plant patents (see 1980s-2004), and the Technology Use Agreement (see 1996) it forces farmers to sign. According to a 2005 report by the Center for Food Safety (CFS), the availability of conventional seeds to farmers worldwide has been dramatically reduced as a result of Monsanto’s control of the market. “For many farmers across the country, it has become difficult if not impossible, to find high quality, conventional varieties of corn, soy, and cotton seed. Making matters worse, the direction of land-grant university research has been shifting away from producing new conventional seed varieties and toward biotech applications,” the report says. Indiana soybean farmer Troy Roush tells the Center, “You can’t even purchase them in this market. They’re not available.” Another farmer interviewed by the organization, a Texan, similarly states, “Just about the only cottonseed you can get these days is [genetically engineered]. Same thing with the corn varieties. There’s not too many seeds available that are not genetically altered in some way.”
[Center for Food Safety, 2005, pp. 9-10 ]

The US Department of Agriculture (USDA) and Delta & Pine Land Company jointly obtain US patent 5,723,765 for a technology that would be used to make sterile seeds (see 1994 and after). The seeds, dubbed “terminator” seeds by critics, would grow into plants that would produce seeds that when replanted would literally kill themselves by producing a toxic protein. Delta & Pine Land has exclusive licensing rights, while the USDA would earn about 5 percent of the net sales of any commercial product using the technology. The USDA and Pine Land Co. have also applied for patents in at least 78 other countries. Delta & Pine Land says in its press release that the technology has “the prospect of opening significant worldwide seed markets to the sale of transgenic technology for crops in which seed currently is saved and used in subsequent plantings.” [USPTO Patent Database, 3/3/1998; Rural Advancement Foundation International, 3/30/1998; Ecologist, 9/1998]

Willard Phelps of the US Department of Agriculture (USDA) tells Rural Advancement Foundation International (RAFI) that the goal of terminator technology is “to increase the value of proprietary seed owned by US seed companies and to open up new markets in Second and Third World countries.” Phelps says he wants terminator technology to be “widely licensed and made expeditiously available to many seed companies.” [Rural Advancement Foundation International, 3/30/1998] The USDA shares a patent for terminator technology with Delta & Pine Land (see March 3, 1998).

The 1991 revisions to the International Convention for the Protection of New Varieties of Plants (see March 19, 1991) are entered into force. The controversial changes limit farmers’ rights while extending intellectual property rights for seed companies and other plant breeders. [International Union for the Protection of New Varieties of Plants, 4/21/1998; Financial Times, 4/24/1998] A press release published by the UPOV notes that Article 27.3(b) of the WTO TRIPS agreement calls for its members to protect plant varieties with patents or other mechanisms, such as the UPOV convention, which it says is the “only internationally recognized sui generis system for the protection of plant varieties.” The press release also notes that this obligation in the TRIPS Agreement, which already applies to developed country members of WTO, will enter into force for many developing countries on January 1, 2000. [International Union for the Protection of New Varieties of Plants, 4/21/1998]

Monsanto says it will purchase Delta & Pine Land Company, the company that shares a jointly-held patent on terminator technology with the US Department of Agriculture (see March 3, 1998). [Ecologist, 9/1998] The acquisition will be stalled by US anti-trust agencies, and in December 1999 Monsanto will drop its bid (see December 19, 1999).

A group of Monsanto-hired consultants urge some of Africa’s most prominent academics and politicians to sign a public statement titled, “Let the Harvest Begin.” It would be published “in major European newspapers in early June.” The statement argues that biotechnology is the answer to world hunger. “Many of our needs have an ally in biotechnology and the promising advances it offers for our future,” the statement reads. “With these advances, we prosper; without them, we cannot thrive… Slowing its acceptance is a luxury our hungry world cannot afford.” Monsanto’s name appears on the draft declaration in tiny text. According to reporter and columnist George Monbiot, “readers could be forgiven for imagining that the statement is the initiative of the signatories, rather than the company.”
[Global Business Access Ltd, n.d.; Guardian, 6/4/1998]

Dr. M.S. Swaminathan, former independent chairman of the FAO Council and recipient of the World Food Prize, writes in an article published by the Biotechnology and Development Monitor: “In India where there are nearly 100 million operational holdings, denial of plant-back rights or the use of the terminator mechanism will be disastrous from the socio-economic and biodiversity points of view, since over 80 percent of farmers plant their own farm-saved seeds.”
[Swaminathan, 1998; ETC Group, 2/19/2002]

During a debate on terminator technology held during the UN Food and Agriculture Organization (FAO) Commission on Genetic Resources for Food and Agriculture in Rome, Harry Collins, Delta and Pine Land’s vice president for technology transfer, distributes a paper in which he claims, “The centuries old practice of farmer-saved seed is really a gross disadvantage to Third World farmers who inadvertently become locked into obsolete varieties because of their taking the ‘easy road’ and not planting newer, more productive varieties.”
[Collins, 1998; Ecologist, 9/1998]

According to Canadian canola farmers Ed and Liz Kram of Raymore, Saskatchewan, a plane flies over their farm and spray-bombs three 160-acre fields with a herbicide destroying about half an acre in each field. They believe the herbicide was Roundup and that the bombing was done on behalf of Monsanto to determine if they were growing Roundup Ready Canola without having paid Monsanto’s $15 CAD/acre fee. The Krams believe Monsanto was involved because one of the company’s investigators visited them before the incident inquiring about their canola crop. A government representative who comes out to the farm to investigate the incident suggests the crop damage was caused by lightening strikes. “You think lightening struck in the center of all three of my canola quarters?” Kram asks. The representative then takes a sample to a lab. Testing indicates the presence of a chemical, but is presumably unable to determine what kind. Monsanto denies any connection to the incident. [Canadian Business, 10/8/1999]

Monsanto files a lawsuit against Percy Schmeiser alleging that in 1997 or earlier Schmeiser illegally obtained Roundup Ready Canola seed from an unnamed Monsanto-licensed farmer, planted his fields with the seed, and then saved the seed for the following year’s planting without ever having entered into an agreement with Monsanto. In doing so, Monsanto claims, Schmeiser infringed on its patent. According to Schmeiser, the presence of Monsanto’s patented genes in his crop was a result of infestation, possibly resulting from wind-blown pollen or seed. He recalls that in 1997 (see Summer 1997), after spraying Roundup in his ditches and around telephone poles adjacent to his canola field, approximately 60 percent of the canola plants in that area survived. He then proceeded to spray a trial strip roughly 100 feet wide in the adjacent field which also revealed the presence of Roundup-resistant canola. In 1998, he used the seed from that field mixed in with seed from previous years to plant his 1998 crop (see Spring 1998). [Alberta Report, 9/6/1999; Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 5 ]

Monsanto secures a court order permitting the company to take plants from Percy Schmeiser’s canola fields. Monsanto believes that Schmeiser is illegally growing the company’s patent-protected Roundup Ready Canola. Schmeiser is aware that some of his canola is resistant to Roundup but denies that this is the result of any willful action on his part. He claims to have never purchased or otherwise obtained Monsanto’s Roundup Ready Canola pedigree seed. He thinks the presence of plants resistant to Roundup is the result of cross-pollination or seeds blown from a nearby farm or off passing grain trucks. [Washington Post, 2/3/1999] Monsanto, in a letter to the court dated August 12, says it will notify Schmeiser’s lawyer before entering onto Schmeiser’s property. The sample is to be collected in the presence of Schmeiser and split between Monsanto and Schmeiser so each party can have it tested separately. According to Schmeiser, Don Todd (Robinson Investigation) and James Vancha (Monsanto), arrive unannounced and do not allow him to accompany them. However, Todd and Vancha will dispute Schmeiser’s version of events in court testimony, saying the farmer had declined to participate because of a “bad leg.” Instructions contained in the court order do not specify that they use any sort of representative sampling technique that could be used to determine what percentage of Schmeiser’s canola plants are resistant to Roundup. Rather, since Monsanto is interested only in proving the presence of the patented gene in Schmeiser’s fields, Todd and Vancha are just asked to randomly collect a total of 54 samples from Schmeiser’s 9 fields (27 for Monsanto and 27 for Schmeiser). In spite of the fact that no method is employed to ensure that the composition of the samples are representative of the composition of the fields, Monsanto will later cite test results based on these samples when making assertions in court about the percentage of Roundup-resistant plants growing on Schmeiser’s farm (see January 1999)
[Federal Court of Canada, 6/22/2000, pp. 21 ; Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 24-25 ]

Darwin Murrell of the US Department of Agriculture (USDA) emails a memo informing the department’s scientists that any research into terminator technology must now be reviewed by senior managers. The USDA jointly holds a patent on the technology with Delta & Pine Land (see March 3, 1998). This is a “sensitive issue,” Murrell says. “Imposing an extra level of review for this research will not create undue delays nor will it restrict the creative talents of our scientists, but it will help them avoid potential political and legal pitfalls.”
[New Scientist, 10/10/1998]

The Indian government bans the import of terminator seeds on fears the seeds would threaten traditional crops and put the well-being of Indian farmers at risk. [New Scientist, 10/10/1998] In December, the Indian minister of agriculture will issue a statement summarizing the threat posed by terminator seeds (see December 2, 1998). [India, 12/2/1998]

Scientists and farm economists in the world’s largest agricultural research network, the UN-funded Consultative Group on International Agricultural Research (CGIAR), vote to condemn terminator technology and ban it in all of their crop-improvement programs. The decision to call the ban is made with little objection, save some concerns expressed by a delegate from Canada. American officials present at the meeting say nothing. Overall, members feel that terminator seeds would threaten food security, genetic diversity, biosafety, sustainable agriculture, and plant breeding. CGIAR, comprised of 16 international agricultural research centers, constitutes “the world’s largest public plant breeding effort for resource-poor farmers,” according to Rural Advancement Foundation International. [St. Louis Post-Dispatch, 11/1/1998; Rural Advancement Foundation International, 11/1/1998; London Times, 11/4/1998]

Delta & Pine Land, a US seed company, dumps 30,000 sacks of expired chemical-coated cotton seed on a one-hectare area of land in a small rural community in Paraguay. This happens twice—once in November 1998, and then again in January, the following year. The dump site is only about 170 meters from a school in Rincon’I, a small community of around 3,000 people located about 120 kilometers from Asuncion. The seeds have a coating comprised of Orthene (acefate), benlate, lorsban, Metalaxyl, baytan-Thirann, and Kodiac (a genetically modified bacterium). The pesticides alone are estimated to account for 5 tons of the 660-ton pile. Labels on the seed bags reveal the presence of carcinogenic chemicals and warn that they can cause genetic mutations. At least one person dies as a result of exposure to the seeds. Agustin Ruiz Aranda, a 30-year-old father of four, dies on December 28, 1998. His wife is five months pregnant. The cause of death is recorded as “acute intoxication by contamination from toxic agrochemicals.” His symptoms were reportedly identical to those associated with intoxication with acephate and metamidophos. Acephate, one of the chemicals present in the seeds, turns into metamidophos when combined with water. Residents of Rincon’I complain of headaches, nausea, faintness, insomnia, and dizziness. Children suffer appetite loss and get welts on their skin. Physician Pablo Balmaceda sees 74 Rincon’I residents and finds that every one of them has been poisoned with organophosphates. A Brazilian biochemist, Lenini Alves de Carvalho, confirms Balmaceda’s conclusions. Agronomist Sebastian Pinheiro, director of the IUF’s Department of Health and the Environment, tells Inter Press Service, “There are no precedents that can help us predict what could happen. But people who have been contaminated will probably experience a decline in their natural defenses, and show a tendency to develop serious diseases.” A report dated April 21, 1999 by the Paraguayan Department for Environmental Protection will also confirm the presence of toxins, and it will warn that potential long-term risks include “genetic alterations, cancers, and poisoning.” It also finds contamination in the soil and water table and calls for more investigation. The incident is reported widely in Paraguay, but makes no headlines in the US. After a court ruling, the company admits that it dumped the seeds but refuses to acknowledge their toxicity. [Inter Press Service, 6/4/1999; Rural Advancement Foundation International, 6/22/1999; International Union of Food Workers, 6/25/1999] In mid-1999, Roger Malkin, president of Delta & Pine Land, will say that “investigations by the Paraguayan health and environmental agencies involved have been unable to identify a single case in which the health of people or the environment was affected” by the seed disposal. [Global Pesticide Campaigner, 8/1999] Rather than clean-up the site, the company offers monetary compensation and suggests that seeds could be used as green manure to fertilize the fields. “The tragic irony,” says Miguel Lovera, who works for an Asuncion-based organization, “is that the biotech industry promised to clean up the environment and help feed hungry people. Instead, my country is being used as a dumping ground for high-tech seeds and deadly chemicals that are contaminating rural communities and endangering lives.” Only the Geneva-based International Union of Food and Agricultural Workers offers the community of Rincon’I any help. Even Paraguay’s government resists helping the community. [Inter Press Service, 6/4/1999; Rural Advancement Foundation International, 6/22/1999; International Union of Food Workers, 6/25/1999]

Several weeks after banning terminator seeds in India (see Before October 10, 1998), Shri Sompal, the country’s minister of agriculture summarizes the threat posed by the technology in a public statement: “This is lethal and poses a global threat to farmers, biodiversity, and food and ecological security. The use of this technology would threaten the farmers’ rights to save the seed for their harvest. Because of the lethal nature of the product, the public has been asked to be wary of the introduction of genetically modified foods in many parts wherever this technique is being tried to be introduced.… The farmer will be dependent upon terminator seed and will have to buy the same seed again and again. The company producing the seed can charge any price from the farmers. The farmer will not be in a position to use seeds saved from the previous crops. It will threaten the farmers’ expertise in seed selection and traditional conservation-cum-improved ways of carrying forward the seeds. The technology would have serious implications on the crop biodiversity. It may lead to gradual extinction of traditional varieties. Crop related wild varieties, important for natural evolution for crop species would be affected by cross-contamination. This concern would be of special relevance to India, since the country abounds in land races and wild relatives of crop plants.”
[Rediff, 12/1/1998; India, 12/2/1998]

After Percy Schmeiser’s Examination of Discovery, where he denies that he ever obtained and planted Monsanto’s Roundup Ready certified canola seeds, Monsanto drops its claim that Schmeiser “obtained canola seeds which are resistant to glyphosate from one or more persons licensed by… Monsanto Canada Inc.” Monsanto’s amended statement of claim alleges only that Schmeiser planted seed from his 1997 canola crop containing Monsanto’s patented Roundup-resistant genes and cells, and that in doing so, he infringed on the company’s patent. Therefore, the question of how Monsanto’s gene came to be present in Schmeiser’s fields is no longer of any concern to the company. Whether Schmeiser’s possession of the gene was a result of deliberate action or uninvited contamination has no bearing on the question of infringement, according to Monsanto. It asserts that the mere action of planting seeds containing Monsanto’s patented genes and cells—their presence intentional or not—infringed on the company’s patent. [Washington Post, 5/2/1999; Federal Court of Canada, 6/22/2000, pp. 14 ]

Just three years after its introduction into the market (see 1996), Monsanto’s Roundup Ready Canola is being grown by some 20,000 Canadian farmers, representing nearly half of Canada’s canola market. [Canadian Business, 10/8/1999]

Monsanto has taken legal action against more than 525 farmers whom it has accused of illegally planting its patent-protected seeds. About half of these cases have so far ended with settlements ranging from tens to hundreds of thousands of dollars each, according to Lisa Safarian, Monsanto’s intellectual property protection manager. The Washington Post reports that according to Safarian, Monsanto “has decided that the risk of alienating some farmers is more than offset by the benefit of being able to promise ‘a level playing field’ for the vast majority of honest customers.” Safarian says that money from the settlements are funding a Monsanto-created scholarship fund to help the children of farmers go to college. [Washington Post, 2/3/1999] The money also goes toward other educational programs, such as biotechnology acceptance programs. [Canadian Business, 10/8/1999] Farmers who choose to settle with Monsanto must pay the $12 ($15 CAD)/acre fee and all the profits from the illegally planted crop. The farmer must also sign a contract waiving his or her right to speak publicly about the settlement. Monsanto, on the other hand, explicitly reserves its right in the agreement to comment publicly on the matter. [Canadian Business, 10/8/1999]

Ray Mowling, a vice president for Monsanto Canada in Mississauga, concedes to the Washington Post that some cross-pollination does occur between Monsanto’s genetically modified plants and other plants. Referring to Monsanto’s lawsuit against Percy Schmeiser, a canola farmer accused of illegally growing Monsanto’s Roundup Ready Canola, Mowling “acknowledges the awkwardness of prosecuting farmers who may be inadvertently growing Monsanto seed through cross-pollination or via innocent trades with patent-violating neighbors,” but explains that Monsanto believes that Schmeiser’s case is “critical” to win in order to protect its patent rights against the use of its seed by farmers who have not paid Monsanto’s technology use fees. [Washington Post, 2/3/1999]

Farmers interviewed by the Washington Post have different opinions of Monsanto’s genetically engineered seeds. [Washington Post, 2/3/1999] Ted Megginson, a soybean farmer in Auburn, Illinois, says: “We’re not doing this [farming] for a hobby. We’re looking for net dollars. They’re not holding a gun to my head to make me buy their seeds.”
[Washington Post, 2/3/1999] Tim Seifert, a soybean farmer from Illinois, tells the newspaper, “It’s made me a better farmer.” He adds that he saved $5 to $6 an acre the previous year in reduced labor and pesticide costs after planting his fields with Monsanto’s pesticide-resistant soybeans. [Washington Post, 2/3/1999] Vincent Moye, a farmer in Reinbeck, Iowa, says: “Every year I get catalogues from the seed salesmen, and more and more varieties have the Roundup Ready gene even though I don’t need it. The government’s looking at Microsoft too hard. This is a bigger monopoly. We’re all gonna be serfs on our own land.”
[Washington Post, 2/3/1999]

The Rural Advancement Foundation International (RAFI), a Canadian-based organization that advocates on behalf of poor farmers, discovers that seed companies have collectively obtained 29 patents on technologies that would be used to create seeds whose growth could be restricted. Companies are interested in the technology because they can protect their intellectual property rights by preventing unauthorized—i.e., unpaid for—use of the seed. The first known patent for this type of technology was for the “terminator” seed, developed jointly by Delta & Pine Land Company and the US Department of Agriculture (see March 3, 1998). The technology has been condemned worldwide by a number of governments, scientists, and organizations concerned with food security, farmers’ rights, and biodiversity. The revelation that so many companies still want to develop and use this technology—despite such widespread condemnation—leads Pat Mooney of RAFI to say that seed sterility technology is the “Holy Grail” of the biotech industry. “The notorious terminator patent is just the tip of the iceberg,” explains Mooney, “Every major seed and agrochemical enterprise is developing its own version of suicide seeds,” he adds. [Rural Advancement Foundation International, 1/27/1999; Rural Advancement Foundation International, 1/30/1999; Rural Advancement Foundation International, 1/30/1999]

Aaron Mitchell, Monsanto’s lead investigator in the Percy Schmeiser case, obtains a back-up sample set of the canola pods that were collected from Schmeiser’s property the previous summer (see August 12, 1998) from James Vancha who has been storing the pods in his freezer. Mitchell takes the seeds to Leon Perehudoff of Prairie Plant Systems who assists him with the grow-out test. Perehudoff will later testify in court that the seeds he receives are clean, though the original sample set of canola pods contained debris. Mitchell claims that he cleaned the seeds by hand even though there would have been no reason to do so in order to grow the seeds. When he is later asked in court to explain how he did this, he will respond that he did it by hand and that it took him about an hour. Another witness, Lyle Friesen, a plant biologist at the University, will testify that the task should have taken “days” to do by hand. All of the seeds included in Mitchell’s grow-out test germinate despite the fact that neither Monsanto’s St. Louis lab nor Friesen (see (August 26, 1999)) are able to so because the seeds were improperly stored and/or moldy. After the plants have grown, Mitchell takes them away to spray them and then later returns with them so he and Perehudoff can count the survivors. For one of the samples, he records an impossible survivor rate of 106 percent—there are apparently more plants in the sample after the spraying than there were before. He then averages this percentage rate with results from the other samples to come up with an average survival rate of 92-96 percent, which Monsanto will later cite as the percentage of Roundup Ready Canola plants in Schmeiser’s 1998 fields. As Schmeiser’s lawyer will later note in court, the samples were not collected using a methodology that would have ensured that the composition of the samples were representative of the composition of the fields. [Federal Court of Canada, 6/22/2000, pp. 23-25 ]

A bill that would require registration and state-level regulation for seed cleaners is introduced into the Ohio state legislature. Seed cleaners are businesses that “clean” seeds for farmers by removing the chaff (which includes grit, dirt, cut plant material). The proposal, introduced by Rep. Joe Haines, is being pushed by Monsanto. James E. Betts, a Columbus attorney who represents Monsanto, tells the Columbus Dispatch, “One of the things the state has a legitimate interest in is regulating the marketplace. It’s important that every seed a farmer gets is a pure seed and is, essentially, as advertised. The seed-cleaning business is not licensed or registered. It’s a segment of seed market that has not been identified.” Seed cleaners would be required to keep records on every farmer who has seeds cleaned or conditioned. For example, the cleaner would need to record the following: the accepted name and brand or variety of the seed; any patents or plant variety protection certificates associated with the seed; the farmer’s contact information; and the amount of seed being cleaned or conditioned. Farmers would also have to sign an indemnification statement, which would also be held by the seed cleaner. The seed cleaner would be obligated under law to store these records for five years and make them available upon request to the State’s Director of Agriculture. Roger Peters, an Ohio farmer and seed cleaner, asks, “Why should any farmer be forced to keep records on law-abiding farmers who clean their own seed? And why should public tax dollars be used to protect the patents of private seed companies like Monsanto?” Sean McGovern, executive administrator of the Ohio Ecological Food and Farmers Association, has similar feelings about the bill. “I can’t imagine any use for this bill accept to enforce Monsanto’s patents,” he says. [General Assembly of the State of Ohio, 1/28/1999; Rural Advancement Foundation International, 3/7/1999; Columbus Dispatch, 4/4/1999] The bill is not passed. [General Assembly of the State of Ohio, 1/28/1999]

Maurice F. Strong, a former secretary general of UNCED, says in a lecture on world hunger, “If the owners of technology, such as big companies, used [biotechnology] to victimize people through methods such as promotion of ‘terminator genes,’ the state should intervene and not leave the task to the market mechanism.”
[Hindu, 4/8/1999; ETC Group, 2/19/2002]

On the advice of his lawyer, Percy Schmeiser purchases new canola seeds for his 1999 crop instead of planting the seeds retained from his 1998 harvest. Schmeiser has been using saved seed since 1994 and says that this decision causes him great distress. [Star Phoenix (Saskatoon), 6/14/2000]

Percy Schmeiser finds several Roundup Ready Canola volunteers growing in his fields. (Volunteers are plants that grow where they are not wanted.) He contacts Monsanto about the canola plants, but the company’s representatives do not come out to his farm to inspect them. [Star Phoenix (Saskatoon), 6/14/2000]

Canadian farmer Louie Gerwing finds canola plants thriving in a fallow field he sprayed with herbicide. He brings a Monsanto-hired investigator to the property who determines it is Monsanto’s Roundup Ready Canola. The investigator documents the infestation on film and then removes the plants by hand. The field, which runs along a busy provincial grid road, contained plants as far as 1000 feet away from the road. It had previously been planted with barley, wheat, and peas. Gerwing speculates that Roundup Ready Canola seeds must have been blown off passing grain trucks during the winter and then distributed around his field by drifting snow. [Alberta Report, 9/6/1999; Star Phoenix (Saskatoon), 6/16/2000]

Canadian farmer Charlie Boser discovers between 300 and 500 Roundup Ready Canola plants in a field that was sprayed twice for weeds with Roundup mixtures. “Everything along that quarter was burnt to a crisp quite brown except for the canola,” he later testifies in court. The plants had apparently come to his fields from the east. “I was a little upset to have this contaminant on my land. I’d never used a Roundup Ready Canola.” He contacts Monsanto, who compensates him for one of his spray applications and pays the person who had done the chemical fallow to “get some kids to come pick it out,” according to Boser. A Monsanto representative later informs him that a field adjacent to his was planted with Roundup Ready Canola. [Alberta Report, 9/6/1999; Star Phoenix (Saskatoon), 6/16/2000; Western Producer (Saskatoon), 6/22/2000]

In an interview with the Alberta Report, Craig Evans, general manager of biotechnology for Monsanto Canada, refuses to say whether or not Monsanto accepts the responsibility of removing Roundup Ready Canola plants that spread to fields where they are not wanted. “We have 55 representatives out there to help all growers with all weed control problems,” says Evans. “Covering costs depends on the situation. At the end of the day, I don’t want to say if we do or we don’t.”
[Alberta Report, 9/6/1999]

The Scientific Body of the United Nations Convention on Biodiversity (SBSTTA) rejects proposals during a meeting in Montreal to recommend a permanent moratorium on genetic use restriction technologies (GURT). GURTs are those which use genetic engineering to restrict the growth of plants in order to protect the intellectual property rights of the seed developer. The most well-known restriction technology is “terminator” technology (see 1994 and after). Another is “traitor” technology, so named because the traits of seeds and plants produced with this technology can be genetically controlled, e.g., a certain proprietary chemical may be required in order for certain genes to be expressed. The proposal to ban GURTs was made after a report by a blue-ribbon scientific panel was presented before the SBSTTA. The report had concluded that restriction technologies are a threat to agricultural biodiversity and national food security. The delegates at the meeting reportedly agreed that the study was broadly based and well done. After listening to the report, the government of Norway proposed that the SBSTTA recommend a moratorium on field trials and commercialization of the technology. India, Portugal, Kenya, Peru, and several other countries backed the proposal. The US opposed it, as did Canada—though only the US delegation attempted to defend the technology. One of the concerns expressed by supporters of the proposal was that terminator technology could be used to strong arm poorer countries into adopting or accepting certain trade policies. Countries like the US, it was suggested, could withhold seed or the chemicals needed to sustain the growth of chemically dependent plants as a sort of ransom. With the US and Canada opposed to Norway’s proposal, an alternative resolution was drafted by Britain (and then amended by Suriname). Though different than Norway’s, Britain’s proposal would have also recommended a ban on commercialization and field trials. But this was not considered agreeable either. Finally, a “contact group” was formed, which went into private discussion. The compromise that resulted from the closed-door meeting looked nothing like either of the original proposals. Under the provisions of the compromise resolution, governments would have the option of imposing a ban on field trials and commercialization. It failed to affirm the conclusions of the Blue Panel report, making no mention of GURT posing a direct threat to biodiversity or national sovereignty over genetic resources. “I don’t know what happened in that room,” Silvia Ribeiro of Rural Advancement Foundation International (RAFI) says, “There were two reasonably strong resolutions when they went in and one very weak proposal when they came out. I think the South has been tricked.” The new proposal was then weakened even further by the efforts of Australia. Even an industry representative took a stab at weakening the proposal. “In the feeding frenzy, a representative from the seed industry became so excited that he took the floor, presumed the prerogative of a government, and proposed additional resolution text to restrict farmers’ rights to save, exchange, and sell farm-saved seed,” according to RAFI. The following day, during a plenary discussion, RAFI called attention to a little noticed provision that had been slipped into the draft by Australia as an amendment. RAFI noted that it would restrict countries’ rights to impose a moratorium on GURT by linking any moratorium to potential trade sanctions. “Shortly before the debate ended, the US delegation made an ugly and aggressive intervention that put the question to rest: The US bluntly threatened trade sanctions on countries that impose a moratorium and made clear that it was willing to use the WTO to force terminator down the world’s throat,” according to RAFI. [Rural Advancement Foundation International, 6/25/1999; Convention on Biodiversity, 6/27/1999, pp. 23-26 ; Convention on Biodiversity, 6/27/1999; Rural Advancement Foundation International, 6/28/1999; Economic Times of India, 7/8/1999]

Dr. Gordon Conway, president of the Rockefeller Foundation, says in a speech before Monsanto’s board of directors: “The agricultural seed industry must disavow use of the terminator technology to produce seed sterility… The possible consequences, if farmers who are unaware of the characteristics of terminator seed purchase it and attempt to reuse it, are certainly negative and may outweigh any social benefits of protecting innovation.”
[Conway, 1/24/1999]

The US Department of Agriculture and cotton seed producer Delta & Pine Land jointly acquire a new patent (US Patent No 5,925,808) for genetic seed sterilization, also known as terminator technology. The patent is for innovations related to its original patent for seed sterilization (see March 3, 1998) issued in March 1998. [USPTO Patent Database, 7/20/1999]

Percy Schmeiser gives the 27 canola pods that were collected by Monsanto a year before (see August 12, 1998) to his lawyers who then send them to the University of Manitoba to be tested for the presence of Monsanto’s Roundup Ready Canola genes. Lyle Friesen, a plant biologist at the university who conducts the tests, finds that 15 of the samples are too moldy to grow. The seeds in the other 12 samples germinate and are sprayed with Roundup. Survival rates in these samples range from 0 to 67 percent. As Schmeiser’s lawyer will later note in court, the people hired by Monsanto to obtain the samples did not collect them using a methodology that would have ensured that the composition of the samples were representative of the composition of the fields (see August 12, 1998). Therefore, according to Schmeiser’s lawyer, the samples can only indicate “what is in the bags, not what is in the fields.” Also included in the samples sent to Friesen are the seeds (the authenticity of which Schmeiser challenges (see June 5, 2000-June 21, 2000)) that were returned to Schmeiser by Saskatchewan Wheat Pool (who took over operations of Humboldt Flour Mills in 1998) earlier in the year. Tests performed on these seeds indicate that between 95 and 99 percent contained the patented gene. [Federal Court of Canada, 6/22/2000, pp. 22 ; Crop Choice, 5/24/2002]

Monsanto CEO Robert B. Shapiro says in an open letter to Gordon Conway, president of the Rockefeller Foundation, that Monsanto is “making a public commitment not to commercialize sterile seed technologies, such as the one dubbed ‘terminator.’” Conway had asked the company’s board of directors to “disavow use of the terminator technology” (see June 24, 1999). Shapiro says the company still intends to research other technologies that would help the company protect its intellectual property rights Such technologies would include ways to switch certain genetic traits vital to a crop’s productivity on or off. Critics have called this technology “traitor” and say that, like terminator seeds, this technology would also threaten biodiversity, food security, and the 12,000 year old practice of seed saving. [Shapiro, 10/4/1999; BBC, 10/5/1999]

The US Patent office issues its third patent (US Patent No 5,977,441) to the US Department of Agriculture and cotton seed producer Delta & Pine Land for genetic seed sterilization, commonly known as terminator technology. The patent is for innovations related to two earlier patents (see March 3, 1998) issued in March 1998 and July 1999 (see July 20, 1999). [USPTO Patent Database, 11/2/1999]

The Foundation on Economic Trends (FOET) files a class-action lawsuit against Monsanto on behalf of a group of Iowa, Indiana, and French farmers. The suit alleges that Monsanto failed to ensure that its genetically modified seeds were safe for consumers and the environment before it brought them to market. It also claims that the company, which has bought out numerous seed companies in recent years (see 1996-1998), seeks to control world production of agriculture and food through the spread of its patented genes. “Through various anti-competitive practices, it seeks to control world production of agriculture and food, with particular concentration on power over seeds,” says Jeremy Rifkin, the foundation’s president. “What this means is that if the companies get their way, no farmer in the world will ever own a seed again. If that doesn’t hold implications for anti-trust law in the world of agriculture, then I don’t know what does.”
[Reuters, 12/15/1999]

Biotech giant Monsanto and drug maker Pharmacia & Upjohn Inc. agree to merge. Together the two companies have a combined market value of about $52 billion. [New York Times, 12/20/1999] Shortly after the merger announcement, Monsanto says it has decided to drop its bid (see May 11, 1998) for Delta & Pine Land, the cotton seed company that shares a patent (see March 3, 1998) with the Department of Agriculture for terminator technology. [Reuters, 12/22/1999]

Aaron Mitchell, Monsanto’s lead investigator in the Percy Schmeiser case, sends seed samples that were taken from Percy Schmeiser’s farm in 1997 (see August 18, 1997) to Keith Downey, emeritus professor of Agricultural Canada and University of Saskatchewan. Mitchell has been in possession of the seeds since the fall of 1997. The seeds were stored in coin envelopes. When Downey receives the seeds there are very few left—one envelope only contains two seeds, while the envelope with the most seeds has only about 30. According to Schmeiser, the envelopes should contain between 200 and 800 seeds each. Schmeiser, who has been invited to witness the planting of the seeds, later claims that the sample includes numerous cleaver seeds. Schmeiser also says that the sample includes cracked seeds and debris indicating that they had been through a combine. If these samples were indeed the ones taken in 1997, there should be no cleaver seeds, cracked seeds, or debris, Schmeiser’s lawyer will later note in the closing argument of Schmeiser’s June 2000 trial (see June 5, 2000-June 21, 2000). Downey’s grow-out of these seeds results in a 50 percent germination rate. All the resulting plants prove resistant to Roundup. [Federal Court of Canada, 6/22/2000, pp. 17 ; Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 20 ]

In Montreal, Canada, the Ad Hoc Working Group on Biosafety (BSWG) continues negotiations on the text of the Cartagena Protocol on Biosafety (CPB), the first protocol to the Convention on Biological Diversity (CBD). The conference is the last in a series of BSWG discussions that began on February 22, 1999 in Cartagena, Colombia. It is attended by over 750 participants, representing 133 governments, NGOs, industry organizations, and the scientific community. The purpose of the protocol is to develop a set of international minimum safety standards for the regulation of trade in genetically engineered organisms (GMOs). The major points of contention during the negotiations relate to (1) the obligations of an exporter to inform importers of shipments containing GMOs, (2) the rights of an importer to reject GMO imports, and (3) whether CBD or World Trade Organization (WTO) regulations have primacy in cases where there is a conflict between the two. The two main negotiating blocks are the “Miami Group” (which includes the GMO-exporting countries of the US, Canada, Australia, Argentina, Chile, and Uruguay) on one side and the European Union and the Like Minded Group (which includes most developing countries) on the other. The Miami Group had formed earlier in Cartagena in order to prevent genetically modified agricultural commodities from being included within the scope of the Protocol, preferring that their regulation remain solely under the jurisdiction of the WTO. The delegates agree on a final draft during the early morning hours of January 29. [Cartagena Protocol on Biosafety (CPB), 6/5/1992; IISD Linkages, 2/18/2000; EAAP News, 8/2000; Genewatch, 3/24/2004; Convention on Biological Diversity, 2/26/2005; Biowatch, 3/26/2005] The Protocol will enter into force on September 11, 2003, ninety days after receiving its 50th ratification. [Convention on Biological Diversity, 2/26/2005]Biodiversity Clearing-House - The CPB establishes a “Biodiversity Clearing-House” to facilitate the exchange of information on GMOs and to assist countries in the implementation of the Protocol. [Cartagena Protocol on Biosafety (CPB), 6/5/1992; Genewatch, 3/24/2004; Biowatch, 3/26/2005]Advanced Informed Agreement (AIA) - The Protocol requires exporters of GMOs to seek permission from the importing country before the GMOs are exported. For most GMO exports, the exporter will be required to follow a set of procedures referred to as the “Advance Informed Agreement” (AIA). However, for GMOs intended for food, feed, or processing (LMO-FFPs), and not planting, a different, less rigorous notification system applies. For these types of GMOs the CPB only requires governments to notify the Biodiversity Clearing-House when they have decided to permit the use of a GMO in their own country and to supply certain information about it. This alternative notification system for food, feed, and processing GMOs was a concession negotiated by the GMO-exporting Miami Group. Pharmaceutical GMOs, GMOs-in-transit, and GMOs intended for use in a laboratory, are also subject to fewer, less stringent regulations. [Cartagena Protocol on Biosafety (CPB), 6/5/1992; Genewatch, 3/24/2004; Biowatch, 3/26/2005]The Precautionary Principle - The CPB permits countries to restrict or ban a GMO if they believe there is a potential for the GMO to cause adverse affects. Conclusive scientific evidence is not necessary. “Lack of scientific certainty due to insufficient relevant scientific information and knowledge regarding the extent of the potential adverse effects of a living modified organism shall not prevent that Party from taking a decision, as appropriate, to avoid or minimize such potential adverse effects.” [Cartagena Protocol on Biosafety (CPB), 6/5/1992; Genewatch, 3/24/2004; Biowatch, 3/26/2005]Multilateral Trade Agreements vs. Convention on Biological Diversity - The Cartagena Protocol contains provisions that address circumstances that would also be under the jurisdiction of certain trade agreements. But it does not address the issue of which set of regulations should take precedence, only stating that “trade and environment agreements should be mutually supportive with a view to achieving sustainable development.” [Cartagena Protocol on Biosafety (CPB), 6/5/1992; Biowatch, 3/26/2005]

Dr. Jacques Diouf, FAO Director-General, says, “We are against [terminator genes]. We are happy to see that in the end some of the main multinationals which have been involved in implementing these terminator genes have decided to backtrack.”
[ETC Group, 2/19/2002]

Canadian canola seeds sold to Europe by Advanta Canada are discovered to be contaminated with a small percentage of genetically modified (GM) seeds. [Canadian Press, 6/4/2000] The contamination resulted from pollen that was blown in from a farm growing GM crops more than a kilometer away. European citizens and governments are outraged and farmers in some of the countries plow their crops under. [Globe and Mail, 5/25/2000; New Scientist, 12/23/2000]

In a letter to delegates at the fifth meeting of the Convention on Biological Diversity, some 310 scientists from both poor and rich countries call for a moratorium on the use of genetically modified organisms. “We call for the immediate suspension of the release of genetically modified crops and products, both commercially and in open field trials, for at least five years, for patents on living processes, organisms, seeds, cell lines and genes to be revoked and banned, and for a comprehensive public enquiry into the future of agriculture and food security for all,” the letter says. The scientists say that the technologies being developed by biotech companies are aimed at protecting the intellectual property rights of seed companies and not to increase global food security or improve the welfare of poor farmers in non-industrialized countries. The letter warns that terminator technologies and trait-control technologies (which make it possible to turn plant traits on or off with the application of proprietary chemicals) would increase farmers’ dependency on chemicals and corporations. The letter calls for patents on these technologies to be banned on grounds that they would encourage biopiracy of indigenous knowledge and genetic resources, violate basic human rights and dignity, compromise healthcare, impede medical and scientific research, and be harmful to animals. [East African, 5/29/2000]

At the fifth meeting of the Convention on Biological Diversity (CBD), member countries adopt a recommendation not to approve field testing or commercialization of GURTs, also known as terminator technology, until additional scientific research has been done. The recommendation, submitted by the Convention’s Scientific Advisory Body (SBSTTA) (see June 15, 1999-June 21, 1999), also say countries should have the option to ban the technologies at the national-level if they so choose. Delegates from several of the non-industrialized countries and a number of civil society organizations are disappointed with the COP 5 decision. They wanted a complete and immediate permanent international ban on the technology because of the potentially devastating effect the technology could have on the food security and agricultural biodiversity. [Rural Advancement Foundation International, 6/16/2000] For example, the African Group’s statement calls on all countries to “immediately ban the terminator technology from respective national territories and thus, from the whole of Africa, as intolerable politically, economically and ethically and in terms of safety of plant life, and in the future, be constantly on the look out for unacceptable products of biotechnology.” [Biodiversity Convention African Group, 5/2000] Other parties calling for a complete ban on terminator technology include Kenya, the Philippines, India, Tanzania, and Malawi. [Rural Advancement Foundation International, 6/16/2000] Many countries, including most of the G77 (with the exception of Argentina) and China, though not calling for an immediate ban, nonetheless agree that GURT is a very serious issue. Noting the heavy reliance on subsistence farming of farmers in their respective countries, they say in a statement, “[W]e feel very strongly on the GURTs issue, as they may impact negatively on our agricultural biodiversity.” [Rural Advancement Foundation International, 6/16/2000] It is also noted at the meeting that portions of the SBSTTA decision are outdated. For example, the SBSTTA in making its recommendation the previous year assumed that GURTs were “not likely to be commercialized in the near future and that at this time no example of the technology has been released in either research or investigative field trial.” This can no longer be said, according to Rural Advancement Foundation International, whose monitoring of the industry has revealed that seven new terminator patents were issued to industry and public sector researchers in 1999 and that biotech company AstraZeneca has already conducted field trials on genetic trait control technology in Britain. [Rural Advancement Foundation International, 6/16/2000] The final text of the GURTs portion of the COP5 decision reads: “[I]n the current absence of reliable data on genetic use restriction technologies without which there is an inadequate basis on which to assess their potential risks, and in accordance with the precautionary approach, products incorporating such technologies should not be approved by Parties for field testing until appropriate scientific data can justify such testing, and for commercial use until appropriate, authorized and strictly controlled scientific assessments with regard to, inter alia, their ecological and socio-economic impacts and any adverse effects for biological diversity, food security and human health have been carried out in a transparent manner and the conditions for their safe and beneficial use validated. In order to enhance the capacity of all countries to address these issues, Parties should widely disseminate information on scientific assessments, including through the clearing-house mechanism, and share their expertise in this regard.” [Convention on Biodiversity, 5/2000]

Pierre Gaudet, owner of a 400-hectare organic soya farm and president of the Quebec Federation of Organic Producers, learns that four percent of his 60-ton crop contains genetically modified soya. His crop was apparently cross-pollinated by his neighbor’s fields. He loses $33,000 when he is forced to sell his contaminated crop on the conventional market, which pays only $190/ton compared to the $750/ton rate that is paid for organic soya. “There is no insurance for that. I can’t sue my neighbor—he followed all the rules,” Gaudet says. “All the companies tell us that cross-pollination [of soya] is impossible, so I didn’t take any special measures.”
[Gazette (Montreal), 10/5/2002]

Monsanto’s 2005 “Technology Use Agreement” (TUA) includes several provisions that were not present in its 1996 agreement (see 1996). The company’s TUAs have been heavily criticized by farmers and groups concerned about food security and farmers’ rights because of its provisions barring farmers from saving and replanting seed. Another part of the contract that has been unpopular among farmers is the requirement that farmers grant Monsanto the right to come onto a farmer’s land to take plant samples any time during the first three years after a farmer has stopped using the company’s seed. Some of the provisions that have been added since 1996 state the following: All legal disputes (except those involving cotton) must be settled at the US District Court for the Eastern District of Missouri or the Circuit Court of the County of St. Louis. Farmers must give Monsanto permission to access third-party records of the farmers’ activities, such as those held by USDA Farm Service Agency (FSA). The Center for Food Safety notes: “The breadth of this provision allows the company to obtain documents that are not necessarily directly related to a farmer’s seed or chemical purchase, permitting Monsanto to assess a grower’s financial state.” Farmers are not required to do anything to prevent contaminating neighbors’ fields with Monsanto’s genes. Recognizing that a “minimal amount of pollen movement (some of which can carry genetically improved traits) between neighboring fields is a well known and normal occurrence in corn seed or grain production,” the agreement suggests that farmers planting the company’s seeds are not under any obligation to prevent the contamination of neighboring non-transgenic crop fields. Conventional farmers “assume the responsibility and receive the benefit for ensuring that their crop meets… specifications for purity,” the agreement asserts.

After Percy Schmeiser and Monsanto fail to reach an out-of-court settlement, Monsanto takes the 69-year-old canola farmer to court. Monsanto claims that in 1998, Schmeiser planted 1,030 acres with seed from his 1997 canola crop containing a gene or cell that was protected by Monsanto’s 1993 (see February 23, 1993) patent on glyphosate-resistant plants and that he did so without permission from Monsanto. The company further alleges that in doing so Schmeiser illegally used, reproduced, and created genes, cells, plants, and seeds containing the patent-protected genes and cells. According to Monsanto, it is of no consequence how the gene arrived in Schmeiser’s field; his mere planting of the gene constitutes infringement. The company is suing for the $15 CAD/acre technology fee that other farmers using the seed are required to pay (A total of $15,450 CAD), the profits resulting from Schmeiser’s 1998 crop ($105,000 CAD, according to Monsanto), interest, exemplary damages ($25,000 CAD), and court costs. [Toronto Star, 6/3/2000; Star Phoenix (Saskatoon), 6/6/2000; Star Phoenix (Saskatoon), 6/21/2000] Terry Zakreski, Schmeiser’s attorney, does not deny that the some of the canola plants in Schmeiser’s 1998 crop contained Monsanto’s patent-protected Roundup-resistant gene. However, he rejects Monsanto’s claim that Schmeiser infringed on the company’s patent when he planted the crop since the presence of Monsanto’s Roundup Resistance canola was not a result of any deliberate action on the part of Schmeiser. The defense suggests that Monsanto’s patented-gene arrived on Schmeiser’s property by way of pollination or wind-blown seed. [Alberta Report, 9/6/1999]Plaintiff Argument--Tests show high percentage of Roundup in sample taken from Schmeiser's 1997 crop - In spite of the fact that Monsanto’s argument does not hinge in anyway on how its Roundup Ready Canola came to grow on Schmeiser’s fields, it nonetheless attempts to make the case that the alleged high percentage of Roundup-resistant canola in Schmeiser’s 1997 crop was too high to have resulted solely from cross-pollination or wind-blown seed as Schmeiser claims. As evidence of this, Monsanto cites tests (see Fall 1997)
(see January 24, 2000) performed on plant samples taken in August of that year by Wayne Derbyshire (see August 18, 1997). Those tests found that the samples contained a very high percentage (more than 90 percent) of seeds containing the patented genes. Monsanto also introduces as evidence, tests performed on seeds given to Monsanto by Humboldt Flour Mills (see Between April 24 and April 28, 1998), the company that had inoculated Schmeiser’s seeds prior to the 1998 planting season. Tests later performed on those seeds found that 95 to 98 percent of them contained Monsanto’s patented gene (see April 2000; (August 26, 1999)). [Toronto Star, 6/6/2000; Star Phoenix (Saskatoon), 6/6/2000]Plaintiff Argument--Tests show high percentage of Roundup in Schmeiser's 1998 crop - Monsanto also presents evidence aimed at demonstrating that Schmeiser’s 1998 crop consisted almost entirely of plants containing Monsanto’s patented Roundup-resistant gene. As evidence, it cites tests performed on samples that were taken from Percy’s crop in the summer of 1998 (see August 12, 1998). The tests done by Aaron Mitchell of Monsanto on these samples indicated that between 92 and 97 percent of the seeds in the samples were resistant to Roundup (see January 1999). [Toronto Star, 6/6/2000; Star Phoenix (Saskatoon), 6/6/2000]Plaintiff Argument--Schmeiser used Roundup on his 1998 crop - In an effort to prove that Schmeiser’s 1998 crop consisted mostly of Roundup Ready Canola and that Schmeiser sought to take advantage of its resistance to the herbicide, Monsanto cites the testimony of Wesley Niebrugge, a farmer and employee of the Esso bulk dealership in Bruno. Niebrugge claims that in 1997 and 1998 Schmeiser’s farm hand Carlyle Moritz told him that Schmeiser had sprayed his fields with Roundup after having seeded his fields with Roundup Ready Canola. Monsanto argues that in spite of Schmeiser’s claims that he did not use Roundup on his crops in 1998, there is no evidence that he used Muster and Assure herbicides as claimed. Furthermore, Monsanto provides evidence that Schmeiser purchased 720 liters of Roundup in 1998. [Star Phoenix (Saskatoon), 6/17/2000]Plaintiff Argument--Roundup Ready Canola presence in Schmeiser's fields cannot be explained by windblown seed - Monsanto also argues that seed blown off the top of passing grain trucks could not have been responsible for the Roundup-resistant canola plants that Schmeiser found in his field more than 100 feet away from the road in 1997 (see Summer 1997). As evidence, Monsanto cites the testimony of Barry Hertz, a mechanical engineer hired by Monsanto because of his expertise in road vehicle aerodynamics. Hertz tells the court that according to his own calculations, canola seed blown off the top of a moving grain truck would fly no more than 8.8 meters from the road. His calculations are based on the weather conditions recorded at the Saskatoon airport in October and May of 1996, 100 kilometers away from Schmeiser’s farm. [Star Phoenix (Saskatoon), 6/9/2000; Canadian Press, 6/9/2000]Plaintiff Argument--Schmeiser segregated his crop - Monsanto argues that Schmeiser segregated his crop when he chose to save and plant the seeds harvested from the same field where he knew Roundup Ready plants had grown. The company’s lawyer questions why he would have done so if he considered those plants to be a contaminant on his land. [Star Phoenix (Saskatoon), 6/15/2000]Defense Argument--Schmeiser did not undertake any deliberate action to obtain Monsanto's Roundup Ready Canola - According to Schmeiser, the presence of Monsanto’s patented gene in his crop was not a result of any deliberate action he took. Rather he suggests that his crop was likely contaminated with Monsanto’s genes from wind-blown pollen or seed. Zakreski notes that there is no evidence whatsoever that Schmeiser illegally obtained Roundup Ready Canola seed. Monsanto has never identified anyone who may have sold Roundup Ready Canola seed to Schmeiser, and Schmeiser has never admitted to having acquired the seed. Monsanto employee Aaron Mitchell candidly testifies to this fact on the stand. [Star Phoenix (Saskatoon), 6/9/2000; Star Phoenix (Saskatoon), 6/13/2000] Percy Schmeiser’s field hand, Carlyle Moritz, testifies that swaths from a neighboring canola field planted with Monsanto’s Roundup Ready Canola blew onto one of Schmeiser’s fields in 1996 (see Fall 1996). The swaths were subsequently picked up by a combine on Schmeiser’s fields and deposited in the grain bins on that field. The defense believes it is possible that some of the seed from that bin was used to plant Schmeiser’s 1997 crop. [Federal Court of Canada, 6/22/2000, pp. 6 ] Schmeiser recalls that in 1997 (see Summer 1997), after spraying Roundup in his ditches and around telephone poles adjacent to his canola field, approximately 60 percent of the canola plants in that area survived. Curious about the possibility that his canola plants may have developed a resistance to Roundup, he sprayed a trial strip about 100 feet wide in one of the fields that is next to the road. The total area of the strip was a “good three acres,” he says. As a result of the spraying, roughly 40 percent of the canola plants died. The surviving 60 percent were scattered in clumps and were mostly concentrated near the road. He believes that the uneven presence of clumps that were thicker closest to the road and thinner towards the center of the field is evidence that plants had been sown from seed coming from the direction of the road, probably from seed blown off passing grain trucks in late 1996. Zakreski argues that Schmeiser’s plants may have been pollinated with pollen transported by wind or other means from a neighboring farm. He notes that Monsanto scientist Robert Horsch has acknowledged in court testimony that the company’s dominant Roundup-resistant gene would be present in any pollen from a Roundup Ready Canola plant and therefore could pollinate non-transgenic plants. Zakreski also cites the testimony of Monsanto witness Keith Downey that “one hungry bee” is capable of traveling a great distance. Even though Monsanto employee Aaron Mitchell testified that the closest field planted with Monsanto licensed Roundup Ready Canola seed was approximately five miles away, Zakreski notes that it is impossible to state for sure that someone was not illegally growing it closer. [Star Phoenix (Saskatoon), 6/6/2000; Federal Court of Canada, 6/22/2000, pp. 28 ; Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 16 ] Schmeiser’s neighbor Elmer Borstmeyer testifies that he grew Roundup Ready Canola under agreement for four years beginning in 1996 and that he drove his truck by four of Schmeiser’s fields after harvest. He recalls that on one or two of his trips, the tarp was loose, and he believes he lost a lot of canola seed. “The tarp acted like a cyclone,” he said. “I lost some seed. That’s for sure”
(see Fall 1996). [Star Phoenix (Saskatoon), 6/16/2000; Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 50 ] Schmeiser’s lawyer cites other cases where farmers’ fields have been contaminated with Monsanto’s Roundup Ready Canola, including farmers Charles Boser (see Summer 1999) and Louis Gerwing (see Summer 1999). He also notes that just a few weeks before, Canadian canola seeds sold to Europe by Advanta Canada were discovered to have been contaminated with a small percentage of genetically modified (GM) seeds (see May 2000). [Star Phoenix (Saskatoon), 6/16/2000] Zakreski also addresses the various tests that were conducted on samples taken from Schmeiser’s 1997 and 1998 crops. Monsanto had used some of the tests as evidence to argue that more than 90 percent of the plants in some of Schmeiser’s fields contained Monsanto’s patented gene. Of the samples that were taken by Wayne Derbyshire in 1997 (see August 18, 1997) and used as the basis for two grow-out tests (see Fall 1997)
(see January 24, 2000), and of the samples that were taken by Don Todd and James Vancha in 1998 (see August 12, 1998) and used for a grow-out test performed by Aaron Mitchell (see January 1999), Zakreski argues that they were all (1) taken illegally, and should not be admitted by the court; (2) taken using a methodology that was not intended to be representative of the fields from which they were taken; and (3) were not obtained, stored, or tested in a scientific manner or by independent parties. [Federal Court of Canada, 6/22/2000 ] Of the samples that were handled by Aaron Mitchell before being sent to and tested by Keith Downey on January 24, 2000 (see January 24, 2000), Zakreski questions (1) why so many seeds were apparently missing from the coin envelopes; and (2) why there were cleaver seeds, debris, and cracked seeds present in this sample—presumed to have been taken directly from canola pods. [Federal Court of Canada, 6/22/2000, pp. 18 ] Zakreski also challenges the authenticity of seeds used in a grow-out test that was performed by Aaron Mitchell in January 1999 (see January 1999). He asks how it came to be that seeds Mitchell brought to Leon Perehudoff were clean when in fact the seeds in the original sample contained debris. Though Mitchell claims to have cleaned the seeds by hand in a matter of an hour, plant biologist Lyle Friesen, another witness, testifies that such a task should have taken “days” to do by hand. Zakreski also notes that is unclear why the seeds Mitchell planted enjoyed a 100 percent germination rate when Friesen and experts at Monsanto headquarters in St. Louis were able to get only about half their seeds—presumably taken the same day as Mitchell’s seeds—to grow. [Federal Court of Canada, 6/22/2000, pp. 23-25 ] Additionally, Zakreski questions the authenticity of the seed samples that Monsanto obtained from Humboldt Flour Mills (see Between April 24 and April 28, 1998). The seeds tested by Monsanto had apparently been cleaned, when in fact the seeds supplied to the mill by Schmeiser (see April 24, 1998) were bin-run seeds full of chaff. No evidence is provided by the plaintiff to explain how the seeds cleaned themselves. [Federal Court of Canada, 6/22/2000, pp. 19 ]Defense Argument--One must use a patented invention for there to be infringement - Zakreski argues that for a patent infringement to occur, one must use the invention. His argument can be summarized as thus: (1) Monsanto has a patent on a gene, not a plant; (2) it is not a patent infringement to merely possess a patented invention, one must either use, or intend to use, the patented invention in order for there to be an infringement; (3) the act of growing a plant that contains the patented gene does not imply the use of that gene since that gene is not needed for the plant to grow; (4) the use of a patented invention necessarily entails that the “object,” or “essence,” of a patent be utilized, which in this case is a cell’s resistance to Roundup; (5) to use Monsanto’s invention, one must therefore either use, or intend to use, Roundup on one’s crop; and (6) because Schmeiser did not use Roundup on his crop, he did not infringe on Monsanto’s patent. The evidence Zakreski provides to support this argument can be summarized as follows: (a) there was no motive for Schmeiser to acquire and use Monsanto’s patented technology; (b) Schmeiser did not attempt to segregate seed known to be Roundup-resistant from the rest of his seed and therefore had no intention of using the properties of Monsanto’s patented gene; and (c) Schmeiser’s 1998 crop was a mixture of Roundup-resistant and non-resistant canola plants and therefore Schmeiser derived no benefit from Monsanto’s technology; and (d) Schmeiser did not, in fact, use Roundup on his 1998 crop. a - Using Roundup Ready Canola would have made it impossible for Schmeiser to grow canola back-to-back, his preferred method of growing canola (see 1994-1998). [Federal Court of Canada, 6/22/2000, pp. 2-3 ] The only benefit of using Roundup Ready Canola is that it allows one to spray Roundup herbicide on one’s crop. Roundup can only be applied after the weeds have germinated and there is weed foliage to spray. Schmeiser prefers not to spray weeds in his crop at this late stage because it would allow the weeds to use much of the soil’s moisture that would otherwise be available to the crop. Instead, he uses products that can be incorporated into the soil, or that kill weeds as they germinate (see 1994-1998). Furthermore, Schmeiser notes that Roundup is thought to leave a residue in the soil that kills mycorrhiza, a beneficial fungus that helps plants absorb nutrients in the soil. [Federal Court of Canada, 6/22/2000, pp. 3 ] Schmeiser prefers to save his seeds rather then buy new seeds each year, which he considers to be an unnecessary expense. [Federal Court of Canada, 6/22/2000, pp. 2 ] There was nothing wrong with Schmeiser’s seed stock that would have warranted interest in acquiring new seed. Schmeiser’s crops have performed much better than others in the area and are relatively free of common diseases that affect canola. Schmeiser has never had to file an insurance claim for his crop and because of this he receives a discount on his crop insurance premium. [Federal Court of Canada, 6/22/2000, pp. 2 ]b - Zakreski notes that in 1997, Schmeiser made no attempt to segregate the Roundup-resistant plants from the non-resistant plants in his fields. His farmhand, Carlyle Moritz, saved the seed from both the area where Roundup-resistant crop was known to have grown and other areas where these plants were not known to have grown (see Fall 1997). In spring 1998, these seeds were combined with bin-run seeds from previous years to sow Schmeiser’s canola crop (see Spring 1998). [Federal Court of Canada, 6/22/2000, pp. 11 ]c - Schmeiser’s attorney argues that Schmeiser had nothing to gain in planting a mixed crop of Roundup-resistant and non-resistant canola plants. “The advantage in growing Roundup Ready Canola is that a grower may spray in-crop with Roundup and achieve broad spectrum weed control. If a grower plants a crop which is a mixture of Roundup Ready and Roundup susceptible canola, he cannot spray in-crop with Roundup. To do so would be suicide.” [Federal Court of Canada, 6/22/2000, pp. 28-29 ]d - Schmeiser says that in 1998 the herbicides he used on his crops were the brand-names Muster and Assure. It would have made no sense, Zakreski argues, for Schmeiser to have knowingly planted Roundup Ready Canola. “It would make no sense if he knowingly proceeded to seed Roundup Ready Canola and not use Roundup,” notes Zakreski. [Leader Post (Regina, Saskatchewan), 6/13/2000] Schmeiser, however, as noted by the plaintiff, was unable to produce receipts showing he had used Muster and Assure on his canola. He explains that the Esso bulk dealership where he lives changed hands after 1998 and the new owners were unable to locate the receipts. [Star Phoenix (Saskatoon), 6/15/2000] Weed ecology expert Rene Van Acker testifies that the test results from Manitoba (which identified the presence of non-resistant canola plants in a sample taken from Schmeiser’s fields) (see (August 26, 1999)) prove that Schmeiser did not spray his fields with Roundup. If he had sprayed his fields, he would have killed much of his crop. “It would make no sense for a producer to sow Roundup Ready Canola and not use Roundup,” Van Acker recently wrote in a report requested by the defense. [Star Phoenix (Saskatoon), 6/17/2000] While Schmeiser did purchase 720 liters of Roundup in 1998, as noted by the plaintiff, Schmeiser says that he used this quantity of Roundup to clear his fields before spring planting and also to clear the weeds in the roadside ditches and around telephone poles. Schmeiser testifies that he would have used 515 liters of the herbicide to chem fallow his 1,030 acres leaving 205 liters for the ditches and right-of-ways. Zakreski’s final brief includes a table depicting Schmeiser’s use of the chemical in 1996, 1997, and 1998, demonstrating that the amount of Roundup used in 1998 was entirely consistent with the previous two years. Additionally, Schmeiser explains that if he had planted 100 percent Roundup Ready Canola that year, following Monsanto’s recommended application rate of 1 liter/acre, he would have needed an additional 1,000 liters, a claim that not one of Monsanto’s witnesses attempts to challenge. [Federal Court of Canada, 6/22/2000, pp. 13 ]Defense Argument--Monsanto's patent does not confer property rights - Another argument advanced by Schmeiser’s attorney is that because Monsanto’s patent does not confer ownership rights of the gene to the company, only intellectual property rights, the insertion of that gene into someone’s plant cannot possibly make that plant property of Monsanto. If the pollen produced by a Roundup Ready Canola plant fertilizes a non-transgenic plant owned by another farmer, Monsanto can claim no property rights to the plant’s offspring. [Federal Court of Canada, 6/22/2000, pp. 38-39 ] In support of this argument, Zakreski cites the similarity of this case to “stray bulls” cases in which the owners of cows impregnated by stray bulls owned by someone else have successfully sued for damages on the basis that early breading stunted the growth of their cows. In no such cases, notes Zakreski, has an owner of a stray bull attempted to claim any rights to the stray bull’s offspring. [Federal Court of Canada, 6/22/2000, pp. 38-39 ] Zakreski also states that the law of admixture applies to this case. The premise of that law is as follows: “… where a man willfully causes or allows property of another to inter-mix with his own without the other’s knowledge or consent, the whole belongs to the latter…”. [Federal Court of Canada, 6/22/2000, pp. 38-39 ]Defense Argument--Monsanto waved its patent rights when it released its invention unconfined into the environment - The defense also argues that Monsanto waived the patent rights on its invention when it failed to control the spread of its invention after it was released into the environment unconfined. The lawyer writes: “Had [Monsanto] maintained control over its invention, it may have maintained its exclusive rights. However, inventions do not usually spread themselves around. They do not normally replicate and invade the property and lands of others. Ever since regulatory approval for this invention was given, it has been released unconfined into the environment. Mr. Schmeiser has produced ample evidence of just how extensive the release is in the Rural Municipality of Bayne, where he farms. Any exclusive rights Monsanto may have had to its invention were lost when it lost control over the spread of its invention. Surely, the exclusive right to possess such an invention cannot be maintained if the spread of the invention cannot be controlled. The unconfined and uncontrolled release into the environment is an act by Monsanto completely inconsistent with its exclusive rights. It cannot on the one hand unleash self-propagating matter uncontrolled into the environment and then claim exclusively wherever it invades. It can, by this, be taken by its conduct to have waived its statutory rights.” Zakreski warns that giving Monsanto property rights to any and all genes or plants that result from the uncontrolled replication of its invention could potentially cause all Canadian canola farmers to lose their right to save and replant seed. “It can never be said with certainty that Monsanto’s gene will not soon be present on any canola field in western Canada. Accordingly, no farmer who saves and re-uses his seeds can be sure the Monsanto gene is not present in his seed supply.” Zakreski suggests: “Perhaps this is a benefit that Monsanto hoped to achieve by releasing their product into the environment without any control.” [Federal Court of Canada, 6/22/2000, pp. 39-41 ; Star Phoenix (Saskatoon), 6/22/2000] As evidence that Monsanto failed to control the spread of its invention, Schmeiser spends several hours showing the courtroom pictures he took in the vicinity where he lives of volunteer Roundup-resistant canola plants growing in ditches, flower beds, cemeteries, and roadways. He explains how he sprayed the plants with Roundup and then returned to see if they had survived. [Star Phoenix (Saskatoon), 6/14/2000]Defense Argument--Monsanto's patent is invalid; Monsanto's intellectual rights are protected under the Plant Breeders' Rights Act - Zakreski argues that a gene is “not the proper subject matter for a patent” and therefore the patent “should be declared invalid.” In support of this claim, he cites a federal appeals court’s 1998 decision in the case Harvard College v. Canada (Commissioner of Patents). In that case, the judges ruled that “A complex life form does not fit within the current parameters of the Patent Act… .” Zakreski further argues that there already is legislation—the Plant Breeders’ Rights Act—that protects the intellectual property rights of those who develop new plant varieties. He notes that unlike the Patent Act, the Plant Breeders’ Rights Act explicitly preserves farmers’ rights to save and re-plant their seed. [Federal Court of Canada, 6/22/2000, pp. 43 ]

Percy Schmeiser later claims that Morris Hofmann, the Humboldt Flour Mills employee who retrieved a sample of Schmeiser’s 1998 seed for Monsanto (see Between April 24 and April 28, 1998), admits he lied in court. “He apologized to me for lying about supplying Monsanto with a sample of clean Roundup Ready Canola seed for use in court. He told me that Monsanto had taken him on trips, to lunch and given him free products to use on his farm.” [Crop Choice, 5/24/2002]

As a result of pressure from civil society organizations and the public, Rizal Ramli, Indonesia’s coordinating minister for the economy, postpones the signing of an agreement between Indonesia and Monsanto on the planting of 20,000 hectares (49,400 acres) of genetically modified (GM) cotton seed in the province of South Sulawesi. The following day, Sonny Keraf, minister of environment, says an environmental impact assessment will be needed before any of Monsanto’s GM seed is distributed. [Asia Times, 1/20/2005]

The UN Food and Agriculture Organization’s Ethics Panel meets in Rome to consider the ethical implications of recent advances in biotechnology. The panel is made up of world-renowned agronomists and ethicists. The focus of their discussion is on genetically modified organisms (GMOs) in food and agriculture, forestry, and fisheries. Following the meeting, the panel prepares a report that includes a summary of its views and lists a number of recommendations. The overriding concern of the report, completed some time in 2001, is that there is an inherent conflict between the interests of the corporations developing the technology and the social issues that GMO defenders say the technology will address. The biotech industry’s primary concern is “to maximize profits,” not to address the needs of the world’s rural poor, the report says. The panel notes that the private sector receives more resources than the public sector for GMO research, and that in some cases, public resources are actually being diverted to support private sector priorities. Another problem, according to the panel, is that the adoption of GM crops could undermine farmers’ livelihoods. Noting the power and leverage enjoyed by industry, the panel’s report warns that seed companies “may gain too much control over the rights of local farmers” and create a dependency among the rural poor on imported seeds. This would especially be the case if the biotech industry were to move ahead with genetic use restriction technologies (GURT), more commonly known as terminator technology (see 1994 and after). “The Panel unanimously stated that the ‘terminator seeds’ are generally unethical, as it is deemed unacceptable to market seeds whose offspring a farmer cannot use again because the seeds do not germinate,” the report says. “GURTs are not inherent in genetic engineering. While corporations are entitled to make profits, farmers should not be forced to become dependent on the supplier for new seeds every planting season.” However the panel says it does believe there is potential for the ethical use of GURTs. According to the panel, “Where the concern is with possible outcrossing of crops, for example GMOs that could damage wild plant populations, GURTs might be justified. This may also apply elsewhere: when the primary concern is to prevent reproduction of farmed fish with wild populations, for example, then GURTs could be useful in protecting wild populations.” In conclusion, the panel stresses the need for independent, publicly-funded research on GMOs that is “directed to the needs and benefits of poor farmers, herders, foresters and fishers.”
[Food and Agriculture Organization, 2001 ]

Dr. Ignacio Chapela, a microbial ecologist, and his assistant, David Quist, a graduate student at UC Berkeley, discover the presence of genetically modified (GM) genes in native Mexican maize growing in the remote hills of Oaxaca, Mexico. The contaminant genes contain DNA sequences from the cauliflower mosaic virus, which is often used as a promoter to “switch on” insecticidal or herbicidal properties in GM plants. Contamination is also found in samples from a government food store that purchases animal feed from the US. The Oaxaca region is considered to be the birthplace of maize and the world’s center of diversity for corn, “exactly the kind of repository of genetic variation that environmentalists and many scientists had hoped to protect from contamination,” the New York Times reports. Scientists worry that the genes could spread through the region’s corn population reducing its genetic diversity. Critics of genetically modified crops have long argued that the technology cannot be contained. According to Dr. Norman C. Ellstrand, evolutionary biologist at University of California at Riverside, the discovery “shows in today’s modern world how rapidly genetic material can move from one place to another.” The findings are not good news for the biotech industry which is currently lobbying Brazil, the European Union, and Mexico to lift their embargoes on genetically modified crops. [New York Times, 10/2/2001; Manchester Guardian Weekly, 12/12/2001; BBC, 3/13/2002] It is later learned that the contamination resulted from Oaxacan peasants planting kernels they purchased from a local feed store. Though there’s a moratorium on the growing of GM crops, there’s no such ban on animal feed containing GM seed. [Cox News, 10/2/2001]

Don Westfall, vice president of biotech consulting company Promar International, tells the Toronto Star, “The hope of the [biotech] industry is that over time the market is so flooded [with GM food products] that there’s nothing you can do about it. You just sort of surrender.”
[Toronto Star, 1/9/2001]

The Royal Society of Canada’s biotech experts releases a report concluding that genetically modified (GM) canola plants resistant to different herbicides have crossbred with each other to produce offspring stronger than their parents. The genes of three different types of GM canola have merged into new varieties resistant to many pesticides, the report says. When these plants show up as volunteers in fields planted with another crop, farmers are finding that they need to resort to broad spectrum herbicides like 2,4-D—the very chemicals farmers are trying to use less of—to kill them. [Royal Society of Canada, 1/2001 ; Star Phoenix (Saskatoon), 2/6/2001]

Bungaran Saragih, Indonesia’s minister of agriculture, grants Monsanto limited approval to grow its Bollgard Bt cotton in the province of South Sulawesi, even though an environmental impact assessment ordered in September (see September 2000) has not been completed. He says the cotton will be grown in an experimental project. According to SEC documents, this approval was obtained through the efforts of a Monsanto manager and one of its representative entities, possibly PT Harvest International Indonesia, in Jakarta. [Jakarta Post, 1/10/2001; US Securities and Exchange Commission, 1/6/2005; Asia Times, 1/20/2005]

Forty tons of Monsanto’s Bt cotton seed arrives in Makassar, the capital city of the Indonesian province South Sulawesi. Local authorities apparently try to keep news of the shipment under wraps. According to the Jakarta Post, “The provincial plantation office denied reports of the seed’s arrival on Thursday morning, but at approximately 1 pm on Thursday, the Jakarta Post noticed a Russian Ilyusin transport plane, with body number IL-76T, unloading the seed in the airport’s military area. The wide-bodied plane, chartered by Norse Air Charter from Johannesburg, was tightly guarded, and reporters and photographers were barred from approaching the plane.” Four Monsanto officials eventually meet with the press and say the seeds have been imported to meet the needs of Indonesian farmers. “There are at least 400,000 hectares of cotton plantations to be developed by the farmers here,” one of the executives says. Activists try unsuccessfully to block the convoy of trucks as they leave the airport. [Jakarta Post, 3/17/2001] The trucks, under armed guard and marked “rice delivery,” deliver the cotton seeds to farms in seven different districts in South Sulawesi. [Asia Times, 1/20/2005] The seeds will be grown as part of an experiment aimed at assessing the crop’s performance so a decision can be made on whether the seeds should be grown commercially. [Institute for Science in Society, 12/5/2004]

Canadian Federal Judge Andrew MacKay rules in favor of Monsanto in its case against Canadian canola farmer Percy Schmeiser (see June 5, 2000-June 21, 2000). [Star Phoenix (Saskatoon), 3/30/2001]Judge MacKay decides the following: - That all test results submitted to the court as evidence by Monsanto was admissible and worthy of consideration by the court. The test results had indicated that a high percentage (in most cases, more than 90 percent) of the seed present in several samples presumably taken from Schmeiser’s canola fields contained Monsanto’s patented Roundup Ready gene. Schmeiser’s lawyer had argued (see June 5, 2000-June 21, 2000) that the samples had been taken illegally and were invalid because they were not obtained, stored, or tested in a scientific manner or by independent parties. Schmeiser’s lawyer also raised questions about the authenticity of the samples noting multiple contradictions in the observed properties of the samples as they changed possession from one person to another. The judge dismissed all of these concerns insisting that certain “conclusions of fact” could nonetheless be “drawn from evidence of the various tests.”
[Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 34 ; Star Phoenix (Saskatoon), 3/30/2001] That based on expert testimony and results from the tests on samples taken from Schmeiser’s property, “none of the suggested possible sources of contamination of
Schmeiser’s crop was the basis for the substantial level of Roundup Ready canola growing in field number 2 in 1997.” (“Field number 2” is the field where Schmeiser discovered the presence of Roundup Canola in 1997 (see Summer 1997)) [Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 51 ] That “the source of the Roundup-resistant canola in the defendants’ 1997 crop is really not significant for the resolution of the issue of infringement which relates to the 1998 crop.”
[Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 51 ] That Schmeiser infringed on Monsanto’s patent when he planted seed that he “knew or ought to have known” contained Monsanto’s patented gene. Judge MacKay disagrees with the defense’s argument that in order to have used the essence of Monsanto’s patent, Schmeiser would have had to have applied Roundup to his crop. According to MacKay, the acts of replanting and selling the seed in and of themselves constituted use of the patent’s essence. “Growth of the seed, reproducing the patented gene and cell, and sale of the harvested crop constitutes taking the essence of the plaintiffs’ invention, using it, without permission.”
[Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 51-53 ; Star Phoenix (Saskatoon), 3/30/2001] That the law of admixture and the precedent set by “stray bull” cases do not apply to this case. What distinguishes this case from cases where admixture is relevant, says MacKay, is that “Monsanto does have ownership in its patented gene and cell and pursuant to the [Patent] Act has the exclusive use of its invention.”
[Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 55-56 ] That Monsanto’s patent is valid. MacKay rejects Zakreski’s argument that the Harvard Mouse case relates to this case in the way he described. Rather according to MacKay, while that case concerned the patent on an organism, this case concerns a gene, the process for its insertion, and the cell derived from that process. As such, the Harvard Mouse case “implicitly support[s] the grant of the patent to Monsanto.”
[Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 40 ] That Monsanto’s patent rights on its Roundup-resistant gene persist even after it has inserted itself into a plant owned by someone else. Schmeiser’s lawyer had argued (see June 5, 2000-June 21, 2000) that Monsanto’s patent confers only intellectual property rights, not actual property ownership rights, of the gene to the company and that therefore the insertion of Monsanto’s patented gene into a plant owned by someone else does not make that plant or its offspring property of Monsanto. While Judge MacKay agrees with the defense that the property ownership rights over a plant would not change in such a case, MacKay says that the interest of the person who owns that plant would nonetheless be subject to Monsanto’s patent rights. “Thus,” writes Judge MacKay, “a farmer whose field contains seed or plants originating from seed spilled into them, or blown as seed, in swaths from a neighbor’s land or even growing from germination by pollen carried into his field from elsewhere by insects, birds, or by the wind, may own the seed or plants on his land even if he did not set about to plant them. He does not, however, own the right to the use of the patented gene, or of the seed or plant containing the patented gene or cell.”
[Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 40-41 ; Star Phoenix (Saskatoon), 3/30/2001; Natural Life, 5/2001] That Monsanto did not implicitly waive its patent rights on the Roundup Ready gene because of any alleged failure to control the spread of its gene, as the defendant argued (see June 5, 2000-June 21, 2000). According to Judge MacKay, Monsanto has taken adequate steps to control the spread of its product. He cites Monsanto’s efforts to limit the use of the invention to only those plots of land farmed by licensed farmers for which the technology use fee has been paid; the company’s efforts to enforce the terms of its Technology Use Agreement; and the company’s efforts to remove plants that have invaded the properties of other farmers. MacKay makes little of the several photographs that Schmeiser had taken of Roundup-resistant Canola volunteers that he discovered scattered though out his community. [Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 40-44 ] To issue an injunction barring Schmeiser from planting “any seed saved from plants which are known or ought to be known to be Roundup tolerant, and from selling or otherwise depriving the plaintiffs of their exclusive right to use plants which the defendants know or ought to know are Roundup tolerant, or using the seeds from such plants.”
[Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 55 ] That Schmeiser’s unauthorized use of Monsanto’s patented gene entitles the company to the profit realized by Schmeiser as a result of the sale of his 1998 crop, plus interest. However Judge MacKay believes that Monsanto has overstated Schmeiser’s profit because it did not factor in his labor as an expense. MacKay also disagrees with the plaintiff that exemplary damages are warranted in this case. MacKay gives Schmeiser and Monsanto three weeks to agree on the value of Schmeiser’s 1998 profit. If they cannot come to an agreement by then, Schmeiser is to pay Monsanto the sum of $15,450 CAD, or $15 CAD/acre planted and harvested in 1998. [Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 56-60 ]

Statements

“I was really alarmed at the fact that it said in the decision that it doesn’t matter how it gets into a farmer’s field—whether it blows in or cross pollinates, floods, comes in on farm machinery—it doesn’t belong to the farmer. It belongs to Monsanto.… Even if a farmer knows it or ought to know it, he is still apparently committing an infringement.”
— March 29, 2001 [Star Phoenix (Saskatoon), 3/30/2001, pp. 121]

“What’s really important for us [Monsanto] is the 30,000 Canadian farmers who have signed agreements now know that there is a commitment to fair play and a level playing field.… They can continue to access this technology and gain value from it if that is something they choose to do.”
— March 29, 2001 [Star Phoenix (Saskatoon), 3/30/2001, pp. 121]

“We were concerned with the finding that Monsanto exercised sufficient control of the spread of the gene in the environment not to have waived the (patent) rights”
— March 29, 2001 [Star Phoenix (Saskatoon), 3/30/2001, pp. 121]

Commentaries

“Let’s say you know that you have one or more of Roundup Ready, Liberty Link, Navigator/Compas or SMART canola (tolerant to the herbicides glyphosate, glufosinate ammonium, bromoxynil, or some ALS inhibitors, respectively) on your land. You know this because, like Schmeiser, the plants didn’t die when you used the corresponding herbicide. So, what do you do? Do you call up the company (Monsanto, Aventis, and/or Pioneer, respectively), inform them that you have infringed upon their respective patent(s), and ask them to come out for a visit—then hope they arrive with a sprayer and not a subpoena? If the former, no one will ever know, will they? Or do you wait for a neighbour to report you for suspected brownbagging, using the anonymous hotline set up by Monsanto for that purpose? If the respective compan(-ies) come out and actually do spray out the offending plants, do you call them back again a few weeks later, when late germinating canola has emerged in your wheat or pea crop? How is it that they are going to eradicate these late germinating, potentially seed-bearing HT plants in your established crop? Will they compensate you for damage done to your crop in the process, or from spray drift (a particular problem with the herbicide of choice, 2,4-D) to your adjoining crops—or your neighbours’? What if it was canola you were intending to plant in the contaminated field? You know that you will not be able to distinguish volunteer HT canola from whatever canola you have planted. You know that volunteer HT canola will set seed and shatter, just like your sown canola, recontaminating the land with patent-infringing seed. By definition, if you grow canola on land known to have HT canola in the seed bank, your problems will necessarily amplify over time. Where you had one HT plant this year, you could have dozens next year. So—do you abstain from growing canola entirely? For how long, given that fresh contamination can occur annually? Or do you take responsibility yourself for eliminating the proprietary plants? Do you adjust your crop rotation, your herbicide expenditures—and your bottom line—to cope with contamination that you did not want and could not stop, and that will reoccur annually so long as neighbours choose to grow HT canola? Why should non-GM growers be obliged to adjust their rotation and herbicide schedules and field design in order to protect their own crops from contamination from neighbouring GM crops? Why should non-GM growers have to absorb costs of coping with gene flow that is unwanted, involuntary and unavoidable—or face prosecution? Why should those who have managed their crop specifically for the high-premium GM-free market be forced to lose the premium because of contamination from neighbouring land? Why should any farmer be forced to accept GM contamination in the seed they sow on their own land? Why should taxpayers be obliged to support the mushrooming government infrastructure needed to monitor, regulate, and negotiate to keep GM crops in the marketplace, and the virtually endless costs of recalling contaminated seed and food products from the market? Why should consumers have to pay more for food that is worth no more (and arguably, less to them) because the costs of dealing with unwanted GM both on the farm and in the marketplace must, necessarily, be passed on to the consumer? Why should all growers be penalized by plummeting crop prices incurred because a minority of growers chose to grow GM, causing traditional clients to refuse to buy GM-contaminated grain and instead to patronize offshore sources?… What happens when the traits that move are not HT, but vaccines, pharmaceuticals, plastics, and industrial enzymes? When is the Canadian government going to stop promoting the commercialization of a technology which has so clearly been released prematurely into the marketplace, and which so clearly externalizes its true costs of production involuntarily and unavoidably to its own citizens?”
— (June 2001) [Catholic New Times, 6/17/2001]

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